203 PART II. CLASS I. MISCELLANEOUS STATUTES. [In this Class are contained some of the most important Statutes relating to Real Property; amongst others, the Statute de Donis-the Statute of Quia Emptores the Act for abolishing Feudal Tenures-the Statute of Frauds-and the Act for the Amendment of the Law, with others which I could not in a Manner satisfactory reduce under any common Title. The more particular Classes intended to be introduced in the present general Division are the following, viz. 1. Tithes2. Commons-3. Joint-tenants, &c. and herein of Partition-4. Mortmain5. Conveyances by Infant Trustees, Femes Covert and Lunatics, Mortmain and Charitable Uses-6. Fraudulent Conveyances-7. Leases-8. Uses-9. Fines and Recoveries-10. Wills-11. The Land Revenue of the Crown, so far as it is connected with private Titles. The Statutes relating to Landlord and Tenant will be inserted with those concerning Distresses and Replevins, under Part IV. And the present Class is intended to include all such Statutes concerning Real Property as are not referrable to the particular Subjects above enumerated.] aliqua habeat maritagium suum & hereditatem suam nec aliquid det pro dote sua d nec pro maritagio suo vel pro hereditate sua quam hereditatem maritus suus & ipsa tenuerunt e simul die obitus ipsius mariti sui & maneat in capitali No. 1. shall have her Marriage, The King's Widow, &c. A WIDOW, after the Death 9 Hen. III. c. 7. of her Husband, inconti- her Inheritance, (2) and shall Hobart 153. Marriage, or her Inheritance, Mesuagio mariti sui per quadra-band, (3) and she shall tarry in Dyer. £. 76. ginta dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius fuerit ei assignata vel nisi domus illa sit Castrum & si de castro recesserit domus ei competens statim provideatur in qua possit honeste morari quousque dos sua ei assignetur & secundum quod predictum est & habeat the chief House of her Husband Plow. 32. 2 Inst. 16. stle; (4) and if she depart from Regist. fol. 175. the Castle, then a competent Co. Lit. 38. b. House shall be forthwith pro- 19 Hen. VI. £. 14. 'vided for her, in which she may honestly dwell, until her Dower be to her assigned, as it is afore said; and she shall have in the No. 1. Widows who hold in Capite, not to marry without the King's Licence. ⚫ mean Time her reasonable esto9 Hen. III, c.7.vers of the common; (5) and for See 17 Ed. II. c.4. her Dower shall be assigned unto for the Oath of her the third Part of all the Lands of her Husband, which were his during Coverture, except she were endowed of less at the Church-door. (6) No Widow shall be distrained to marry herself:* nevertheless she shall find Surety, that she shall not marry without our Licence and Assent (if she hold of us) nor without the Assent of the Lord, if she Add While she chooses to live single Fitz Dower, 194, 196. Enforced and amended by 20 Heu III. c. 1. which gives Da mages to the Widows who are de forced of their hold of another.' Dowers. 20 Hen. III. c. 1. 4 Co. 30. V. N. B. fo. 7. rationabile estoverium suum interim: de communi Assignetur autem ei pro dote sua tertia pars totius terre mariti sui que sua fuit in vita sua nisi de minori fuerit dotata ad Hostium ecclesie. Nulla vidua distringatur ad se maritandam dum voluerit vivere sine marito Ita tamen quod securitatem faciet quod se non maritabit sine assensu nostro si de nobis tenuerit vel sine assensu domini sui si de alio tenuerit. No. 2. 20 Henry III. c. 1.-A Woman shall recover Damages in a Writ of Dower. Ffter the Death of their Dyer 284. pl.33 Husbands are deforced of their 2 Inst. 80. DE E viduis vero I. que post mortem virorum suorum expelluntur de dotibus suis & dotes suas, vel quarentenam habere non possunt sine placito videlicit quod quicunque deforciaverit eis dotes suas vel quarentenam suam de tenementis de quibus viri sui obierunt seisiti & ipse vidue postea per placitum recuperaverint ipsi qui de injusto deforciamento convicti fuerint reddant eisdem viduis dampna sua videlicit valorem totius dotis eas contingentis a tempore mortis virorum suorum usque ad diem quo ipse vidue per judicium curie seisinam suam inde recuperaverint nichilominus ipsi deforciatores sint in misericordia domini regis. (*) It is observable that this Statute only gives Damages (to which by the Statute of Gloucester, Costs are incident) of Lands whereof the Husband died seised, which seems to obviate an Objection that is made to the accepting a Title in which there is a Protection against Dower by the Assignment of a satisfied Term, and which Objection supposes that notwithstanding Judgment is given with a Cesset executio, the Defendant will be liable to Costs. As to the Demand necessary to entitle a Widow to Damages, see 1 Inst. 32. Corsellis v. Corsellis, Bull. N. P. 117. but in several Cases, Damages have been given from the Death of the Husband. Belfield v. Rowse, 1 Inst. 53. a. Dobson v. Dobson, Ca. Temp. Hard. 19. A Widow may now in all Cases have Relief in Equity for Recovery of Dower, Mundy v. Mundy, 2 Vésey, Jun. 122. which is the usual Course, and the Writ of Dower may be considered as having almost fallen into disuse.Upon a Bill, the Court will decree an Account from the Husband's Death. Mundy v. Mundy, ubi sup. No. 3. 20 Henry III. c. 2.-Widows may bequeath the Crops of their Lands. 52 Henry III. c. 17.-The Authority and Duty of Guardians in Socage. PROVISUM est etiam, quod TT is provided, That if Land 52 Hen. III. c. 17 terra, que tenetur in socagio, sit in custodio parentum heredum eo quod [ille dum] heres infra etatem extiterit, custodes illi [illius] vastum facere non possunt, vel vendicionem, vel aliquam destruccionem de hereditate illa, sed salvo eam custodiant ad opus dicti heredis, Ita quod cum ad legitimam etatem pervenerit, sibi respondeant de exitibus dicte hereditatis, per legitimam computationem, salvis ipsis custodibus rationabilibus misis suis. Nec etiam possunt dicti castodes dicti heredis maritagium dare vel vendere, nisi ad commodum dicti heredis: set si parentes dicti heredis propinquiores qui hujusmodi custodias habuerint, de toto tempore illo, a quo brevia placitandi non conceduntur, hujusmodi custodias habeant ad commodum heredis, ut predictum est, sine vasto, vel exilio, vel destrucclonibus faciendis. holden in Socage be in the Fitz. Wast. 1, Custody of the Friends of the 9, 100, 107. Heir, because the Heir is within Fitz. Present. Age, the Guardians shall make 10. Co. Ent. 47. 2 Inst. 135. Rast. 21. no Waste, nor Sale, nor any Fitz. Brief, 847. • Destruction of the same Inhe- Fitz Accompt, ritance; but safely shall keep it 35, 59, 60, 77, 'to the Use of the said Heir, so 107. 'that when he cometh to his law. Co. Lit. 87, a. ful Age, they shall answer to 'him for the Issues of the said Inheritance by a lawful Accompt, saving to the same Guardians 'their reasonable Costs. (2) Nei⚫ther shall the said Guardians give or sell the Marriage of such an Heir, but to the Advantage of the foresaid Heir; (3) But the next Friends which had the Ward, for all that Time that Writs of impleading did not lie, 'shall have such Wardship unte 'the Advantage of the Heir, as is said before, without Waste, Sale, or Destruction making.' (*) (*) A Guardian in Socage has an Interest, and may make a Lease of the Land of the Ward. The Husband of Guardian in Socage acquires the Guardianship, but his Lease is only good during the Coverture. Osborne v. Carden. Plowden, 293. In that Case, the Quality of Guardian in Socage is particularly discussed. Guardians in Socage may grant the Reversion of a Copyhold according to the Custom of the Manor which binds the Lord. Stopland v. Rudlen, Owen 115. Godb. 1. S. C. Cro. Sac. 35, 98. by the Name of Shopland and Ryder. He may avow in his own Name and Right, 34 Ed. III. 298. 7 Edw. III. 38. He may bring Trespass or Ejectment in his own Name. Per. Cur. Wade v. Baker. 1 Lord Raymond, 130. The Right of the 52 Hen. III. c. 17. Mother as Guardian in Socage, cannot be set up against the Lord of a Copy No. 4. hold claiming as Guardian by Custom, Id. Possession of a Mother as Guardian in Socage is the Possession of the Heir, and prevents the Descent to the Half-Blood. Goodtitle v. Newman, 3 Wils. 516. Doe v. Skeen, 7 T. R. 326. See Bedell v. Constable, Vaughan 182. Rex v. I.habitants of Oakley, 10 East, 491. See also Stat. 12 Charles II. chap. 24. Post in this Division, and Notes, ibid. 4 Edward I. c.6. Read. Than the Ecoffors, &c. No. 5. 4 Edward I. c. 6.-By what Words in a Feoffment a Feoffer shall be bound to Warrancy. 'N Deeds also where is con Itained Dedi & concessi tale tenementum without Homage, or 'without a Clause that containeth Warranty, and to be holden of the Givers, and their Heirs, by a ⚫ certain Service; it is agreed, that that the Givers, and their Heirs, 'shall be bounded to Warranty. (2) And where is contained Dedi concessi, &c. to be ⚫ holden of the chief Lords of the Fee, or of other, and not of Feoffers, or of their Heirs, re'serving no Service, without Ho· mage, or without the foresaid Clause, their Heirs shall not be bounden to Warranty, notwithstanding the Feoffer during his own Life, by Force of his own Gift, shall be bound to warrant. N cartis autem, ubi continetur IN dedi et concessi tale tenementum, sine homagio, vel sine alia clausula continente Warantiam, & tenend' de donatoribus & heredibus suis per certa servicia; concordatum est per eosdem, quod donator & heredes sui teneantur ad warantizand'. Ubi autem continetur dedi concessi, tenend' de capitalibus dominus, aut de aliis quam de feoffatoribus vel heredibus suis, nullo servicio sibi retento, sine homagio, vel sine dicta clausula, heredes sui non teneantur ad warantizand'; ipse tamer. feoffator [in vita sua] ratione doni sui proprii, teneatur ad war. rantium. (*) That the Word Grant in the Conveyance of an Estate of Freehold does not create a Warranty, is abundantly Clear from all the Authorities upon the Subject. See Co. Lit. 384. [a] Butler's Note, ibid. Spencer's Case, 5 Co. 18. although the Word Give has that Effect. I think it rather to be regretted, that notwithstanding the unquestionable and settled Law in this Respect, those who are perfect Masters of the Subject give Countenance to the unfounded Scruples which are entertained concerning it, by declining to insert the Word Grant in Conveyances from Trustees. It is singular that a a Judge of so much Eminence as Mr. Justice Buller, should have stated that the Words Grant and Enfeoff, amount to a general Warranty in Law, and have the same Force and Effect, and should refer to Nokes's Case, 4 Rep. 80. as settling that Point. Browning v. Wright, 2 Bosanquet and Puller.Nokes's Case relates to the Demise of a Term in which the Words Demise and Grant operate as a Covenant unless there is an express Covenant in which Case the general and implied Covenant of Law is restrained. A Practice has been lately introduced in Conveyancing, of declaring previous to the general Words of Conveyance, that the Party conveys "so far only as he can or may and not further or otherwise, and that he intends only to pass his Interest and not to Warrant the Estate." I think the Practice should be discountenanced, as tending to introduce erroneous Opinions upon the Subject. No. 6. 6 Edward I. c. 3.-An Alienation of Land by the Tenant by the Curtesy with Warranty shall be void. ESTABLI est ensement qe si T is established also, That if 6 Edward I. c. 3. " a Man aliene a Tenement, IT. home aliene tenement qil tient par lei de Engleterre sun fiz that he holdeth by the Law of Vaughan 366. ne seit pas barre par le fet sun England, his Son shall not be Stat. 4 & 5 Ann. pere par qi nul heritage ne lui est barred by the Deed of his Fa- c. 16. Bro. Fordescendu a demander e recovrer 'ther (from whom no Heritage to medon, 73. par bref de mort de auncestre la him descended) to demand and 5 Co. 80. 8 Co. seisine sa mere tut face la chartre recover by Writ of Mortdaunsun pere mentiun qe lui e ses 'cestor, of the Seisin of his Moheirs seient tenuz a la garauntie.ther, although the Deed of his Esi heritage lui seit descendu par sun pere dunges seit il forclos de 52. Co. Lit. 365, 366, 381, a. 382. a. 383, a. b. Father doth mention, that he Dyer, f. 148. and his Heirs be bound to War- Fitz. Garranty, la value del heritage qe lui est de-ranty. (2) And if any Heritage 5. 9 Co. 26. scendo. E sin en tens apres heritage lui descent par mesme le pere dunqe avera le tenaunt vers lui recoverer de la seisne sa mere par bref de jugement qe istra des toules des Justices devaunt les descend to him of his Father's Fiz. Cui in vi- the Value of the Heritage that is quels le plai fu pleide e resomoun-ther, then shall the Tenant re- cover against him of the Seisin of his Mother by a judicial Writ that shall issue out of the Rolls of the Justices, before whom the Plea was pleaded, to resummon his Warranty, as before hath 'been done in Cases where the Warrantor cometh into the Court, saying, That Nothing 'descended from him by whose 'Deed he is vouched. (4) And Keilw. 104. b. le mariage la mere par bref dein like Manner the Issue of the 124, 125. entre qe sun pere en tens sa mere aliena dunt nule fin est levee en la Curt le Rey. Son shall recover by Writ of Cosinage, Aiel, and Besuiel. (5) Likewise in like Manner the Heir of the Wife shall not be barred of his Action after the 'Death of his Father & Mother, by the Deed of his Father, if he ⚫ demand by Action the Inheritance of his Mother by a Writ of Entry, which his Father did aliene in the Time of his Mother, 'whereof no Fine is levied in the 2 Inst. 293. * King's Court.' |