IF a man for him and his heires , do warrant Land to one and his heires ; this is a generall warrantie , because there is not a restraint against any particular person in certeine .

Vpon a Feoffement without warranty , the Feoffee shall have all the Charters , which comprize warranty , and others , though they be not given to him , because hee is to defend the Title at his perill . Upon a Feoffement with warranty , without expresse grant , the Feoffee shall not have any Charters , which serve for to deraigne the warranty paramount . Also the Feoffer shall have all Charters , which serve for maintenance of the Title , but the Feoffee shall have all which maintaine the possession , as Court Rolls , and which are concomitant and incident to the possession .

If A. be seized of a Segniorie , rent , advowson , or other thing that lyeth in grant , and grant the same over unto B. with warranty , and B. grant that to C. with warranty ; In this case C. shall have the first deed although B. be bound to warrantie , for without that he cannot make any Defence against A. or any claiming by him .

A Tenant for life , the remainder in Taile the remainder in fee , bargaines and sells the Land to one , who before the Statute of 14. El. ca. 8. suffers a recoverie , in which A. is vouched , and voucheth over , and he in remainder enters , and the entry is adjudged lawfull ; for the Recovery is a Forfeiture , and the remainder may enter , for it is the common Assurance ; As if Tenant for life had levied a Fine , &c. and suing of execution , doth not toll the entry of the remainder , and a Writ of error was sued , and the plaintiffe release the errors .

32. H. 8. P. devised a house to his wife and her heires , upon condition , that she by advise , &c. with all convenient speed , after his death should assure it , &c. for maintenance of a Free School , &c. for ever , and dyes , 32. H. 8. the wife enters , and 3. E. 6. leases to A. for yeares , the heire of P. enters , and his entry adjudged lawfull ; because 23. H. 8. extends not to good uses , nor doth it make the conveyance voyd , or give entry , but makes the use voyd ; and admit the use voyd , yet the condition is not , for Counsell may devise , &c. as to have a Corporation by Pattent , and licence to assure , and therefore the wife ought to have performed it .

Any man at this day may give Lands , Tenements , or hereditaments to any person or persons , for the finding of a Preacher , maintenance of a Schoole , maimed Soulders , poore people , reparation of Churches , High-wayes , Bridges , marriage of poore maids , or any other charitable uses . But it is good policy in every such Feoffment or estate , to reserve to the Feoffor and his heires any small rent , or to expresse some small summe of money for the consideration of the cause before recited .

A Tenant in Taile , the remainder to B. in Taile . B. grants a rent charge , A. suffers a common recovery , and dyes without issue , the grantee distraines , the Alienee of A. brings a Replevin ; adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle , shall binde not onely the remainder , and all Leases , charges , &c. granted or made by him in remainder , but also the Reversion , and all Leases , charges , &c. granted by him in reversion .

C. Covenants to stand seised to the use of himselfe for life , and after to the use of A. his Eldest Son , and the Heires Males of his body , the remainder to the use of B. his second Son , and the Heires Males of his Body , &c. And if A. or his issue , &c. shall attempt , &c. to alien , &c. by which any estate shall be barred , &c. that after such attempt , and before any act executed , the use and Estate of him so attempting , &c. shall cease onely as to him so attempting , in the same degree as if he were naturally dead , and not otherwise , and that then it shall be immediately to such persons , to whom it should come by the intent of the Indenture , &c. C. dyes , A. suffers a recovery , B. enters , &c. adjudged he could not , for this proviso is repugnant , impossible , and against Law ; for the death of Tenant in taile , is not a cesser of the Estate taile , but death without issue Males ; and by this reason the issue should have it in the life of the Father , &c. And for every discent &c. Death , naturall or civill , is requisite , and t is not materiall , though Tenant in taile had no issue at the time of the breach , for t was repugnant at the beginning ; and the estate taile doth not commence , by the having of issue , and a gift in taile upon condition , that if the Donee dyes , his estate shall cease , is a void condition . Also the proviso is void for the incertainty , as a gift to two , Et haeredibus , is voide though a Warranty be made to them and their Heirs , & in Jermine & Arscotts Case , the like proviso was adjudg'd voide : for be the proviso a condition or a limitation , the intire estate ought to be defeated by it , and an Estate in Land cannot cease for part , and continue for the residue , nor cease for one person , and continue for another , nor cease for a time and revive after . The like judgement was betwixt Chomly and Humble , but the Parliament , or Law , may make an estate voide , as to one , and good to another , as Tenant in speciall taile , levies a fine , the issue is barred not the wife , so a release by the demandant , to the vouchee is good , not by a stranger , so , if an Executor surrender a tearme , to one respect t is extinct , to another t is assetts , &c. And uses are within the Statute De donis , though it speakes onely of Lands and Tenements , and there shall be a Possessio fratris , &c. of them , for they are guided by the Rules of the common Law . Richill in the time of R. 2. and Thirning in the time of H. 4. Justices , intended for to make a perpetuity , but could not .

SIr Richard Chudleigh was seised in fee of the Mannor of D. and had issue foure Sonnes , A. B. C. D. and 26ᵒ Aprill , the third and fourth of Phillip and Mary , infeoffed E. F , &c. in fee , to the use of himselfe and his Heires of the body of G. then Wife of H. and after to the use of the performance of his Will , for ten yeares immediately after his death , and after to the use of the feoffes , and their Heires , during the life of A. the Eldest Sonne , the remainder to the use of the first issue Male of the body of A. and the Heires of the body of the first issue Male , and so to the second issue Male , the remainder to the use of B. the second Sonne , and the Heires of his body , the remainder to C. &c. the remainder to D. &c the remainder to the right Heires of himselfe Sir Richard Chudley , died without issue of the body of G. 1ᵒ of the Queene the feoffees ( C. living ) by deed infeoffed , A. in fee , without consideration , he having notice of the first uses . A. hath issue a Sonne , named S. and after I. and after infeoffes Sir I. C. with warranty , S. died without issue , &c. I. enters , &c. agreed , by all the Justices and Barons but two , that the feoffement made by the feoffees ( which had an Estate for life ) devests all the estates , and the future contingent uses also ; and though A. had notice of the first use , 't is not materiall , because the ancient uses were devested , and this new estate cannot be Subject to the ancient uses , which rose out of the ancient estate , agreed that 27 H. 8. doth not extend to destroy uses , otherwise then by execution , and transferring the possession to them , agreed by the most that 27. H. 8. doth not transferre the possession to any use , but onely to uses In esse , which doth appeare by the Statute , for there ought to be a person In esse , seised , and also a use In esse , for if there be onely a possibility of a use , there cannot be an execution of the possession to the use : the Statute sayes , That the estate shall be out of the feoffees , and that the estate shall be in such person which hath the use . So that no Estate of the feoffees shall be transferred in abeyance ; and upon this t was concluded , that contingent uses , or in possibility , may be destroyed or discontinued , before that they come In esse , as they might at common Law ; so the remainders limitted in use here , shall follow the rule and reason of Estates executed in possession by the common law , and if the estate for life here had beene determined by death , before the birth of the Sonne , the remainder in future should be voide , though the Sonne were borne after , for a remainder ought to vest during the particular estate , or Eo instanti , when it ends . And t was holden by all , that if the contingent use here , had come In esse , without alteration of the estate of the Land , it should be executed by the Statute of 27. H. 8. Also it was holden by most , that 27. H. 8. against the expresse Letter of it , shall not be taken by equity , because , by preservation of contingent uses mischeives intended to be prevented , shall be preserved and greater introduced . Popham chiefe Justice said , that by 27. H. 8. some uses in esse are executed presently , uses in futuro agreeable to Law , are executed if they come In esse , in due time , but uses not agreeable to Law are extirpated , for the intention of the Statute , was , to restore the ancient common Law . Five other points adjudged , besides the principall matter . 1. When Tenant for life ( the remainder being in taile to A. ) infeoffes the reversioner , t is a forfeiture , for it devests the estate in remainder ; so if there be Tenant in taile , the remainder in taile , ctc. and the diversity is , when the privity and estate , is sole and immediate , when not . 2. If A. hath issue B. and C. infants , and a lease is made to A. for life , the remainder to B. in taile , the remainder to C. in taile . A is diseised , and releases to the disseisor with warranty , and dyes , this discends upon B. within age , B. dyes , the warranty discends upon C. within age , C. comes to full age , and three yeares after enters , his entry is lawfull , for he might enter in the life of his Ancestor , and if he doth not enter , yet the warranty shall not binde him , otherwise it is , when he is put to action , and Caveat , that after his full age , he doth not suffer a discent before entry . 3. If a disseisor , &c. who hath a defeasible title in a Mannor , grant a voluntary estate by Coppy ( being forfeited , or escheated to him ) this grant shall not binde him that hath right , after a recontinuance of the Mannor , but admittances , which a disseisor , &c. makes to Coppy holds , are good , for they are in a manner judiciall acts , and shall binde the disseisee . 4. That an estate made to one and his Heires , during the life of B. is but an Estate for life , upon which a remainder may depend . 5. That an Estate made to A. and his Heires of the body of Jane S. is an Estate taile against the opinion of Ascugh 20. H. 6. 36.

FEeoffor and Feoffee upon condition , by Deed joyne in a grant of a rent charge to C. the condition is broken , the Feeoffor reenters , the grantee distraines , the Feoffor brings a Replevin . Resolved , that the rent remaines ; to the objection , that 't is the grant of the Feoffee , and the confirmation onely of the Feoffor , and a confirmation cannot make a conditionall estate absolute , nor alter the quality of it , except it inlarge it : as if a Feoffor confirme the estate of the Feoffee upon condition , before the condition broken , it doth not make it absolute . Answered , and agreed by the Court , that there is a diversity , when the estate of him , to whom the confirmation is made , is upon an expresse condition ; there the confirmation doth not toll the condition ; but if such feoffee infeoffe another without condition , there a confirmation to the second feoffee extincts the condition . Feoffee upon condition grants a rent in fee ; the feoffor confirmes it to him and his heires , and after enters for condition broken , yet the rent remaines , and by Littleton every fee simple land may be charged one way or other , Concurrentibus his , &c. and the case 11. H. 7. is all one with our case , and here 't is the stronger , because the grant and confirmation were by the same Deed , so that the rent was never subject to any condition .

2. E. 6. the Rector of Ched . demised the Rectory to El Elderker for fourescore yeares , if she should live so long ; and if she dyed , within the said terme , or aliened , that then her estate should cease , and then by the same Indenture demises the premises to R. E. for so many yeares , as shall remaine unexpired after the death , or alienation of El. for the residue of the terme of fourescore yeares , if he shall live so long , without alienation , &c. And if he dye , or alien within the said terme , then his estate shall cease ; and then by the same Indenture he grants the premisses to W. for so many yeares of the said terme of fourescore yeares , as remaine , if he lives without alienation , and if W. dyes , or aliens within the said terme , that his estate shall cease , and then he grants , &c. during so many of the fourescore yeares , which shall be unexpired to T. his executors and assignes , which Indenture , and estate , was confirmed by the Patron and Ordinary ; the Rector dyes , T. dyes , W. dyes , and 17. Eliz. Ellerker dyes , after R. enters , and dyes , 18. Eliz. the executor of T. enters , and assignes to J. S. the Successor of the Rector enters , and Leases to B. who upon ouster , brought an Ej. Firmae . Resolved for the Plaintiffe , and that the Lease to T. is voyd . Argued for T. that his demise was good , and a difference taken betwixt terminum annorum , and tempus annorum , as in this case of the demise to T. during so many yeares of the fourescore yeares , &c. not of the terme of fourescore yeares , if a Lease be made for 21. yeares , and after another Lease , to commence from the end and expiration of the said terme of yeares , and after the first Lease is surrendered , the second terme shall commence presently , not so , if it were from the end of the said 21. yeares . Resolved that the demises to R. and W. are voyd , because the terme that El. had , was sub modo , if she should so long live , which is determined by her death , ergo , no residue can remaine to R. and W. and so 't was adjudged between Greene and Edwards , and the Court agreed the diversity betwixt the demises to R. and W. and the demise to T. 't was argued that the demise to T. was voyd . 1. Because that the Lessor had not power for to contract for the land during the fourescore yeares , for he had but a possibility to have the land againe during the fourescore yeares , viz. if El. dyed , which possibility cannot be demised , but the Court delivered no opinion to this poynt . 2. That the Lease to T. was voyd , for the incertainty , how many yeares should be behinde , at the death of El. a termor grants to B. so many yeares as shall be behinde tempore mortis suae , 't is voyd . Locrofts case adjudged , a man possessed of a terme of 90. yeares , upon marriage of his Sonne , demised the land to his Sonne for 70. yeares , to commence after his death , the Lessor dyes , the lease was adjudged good , because here he demised the land for 70. yeares , which is certaine , in which , this differs from 7. E. 6. which diversity was agreed by the whole Court . 3. That 't was voyd , because , he dyed in the life of El. so that the incertainty , cannot be reduced to a certainty in his life time , and so cannot rest in the executors , a lease to one for so many yeares as his Executors shall name , is voyd . Note , a diversity betwixt a covenant and agreement , which is perfect , and certaine , though it takes effect in possession , upon a future matter precedent ; and a covenant and agreement incertaine , which is to be reduced to a certainty by matter ex post facto , for in the first case , the estate is bound presently , in the other not , which was agreed by the Court. 4. It was moved , if T. had been in life , the demise could not rest in him ; T. dyed before R. or W. and R. survived El. and by the expresse condition precedent , R. could not take , except El. dyed within the terme , and W. could not take , except R. dyed within the terme , and this is as much as to say , that if R. dyes before El. and T. cannot take , except W. dye in the life of El. and R. survived El. So that both precedent contingencies faile , viz. the death of R. and W. in the life of El. and though the demise to R. and W. are voyd , yet the limitation precedent ( viz. the death of R. and W. in the life of El. ) to the demise to T. is not voyd , for his interest may depend upon both the contingencies , for so was the intention of the parties , and this was affirmed by the whole Court , by Popham Chiefe Justice . The Lease to T. was voyd for another cause , for it cannot commence upon a contingent , which depends upon another contingent , as here the demise to T. depends upon the contingent annexed to the demise , made to W. and the demise to W. depends upon a contingency annexed to the demise to R.