or a return without the sheriff's name subscribed, because [70 c] Ben. 39. 11 Co. SHERLY US. WOOD. There can be no remitter until the possession and right meet in the same person. When different estates in the same land are made to a woman during coverture, by several conveyances, she may, upon the death of her husband, claim which she pleases, if the election concern herself alone. Tenant in fee of lands, covenants to stand seized thereof to the use of himself in tail, remainder to his wife for life, remainder to H. in tail; and afterwards makes a feoffment of the same lands to the use of himself and wife for their lives, for the jointure of the wife, remainder to B., and dies without issue. The wife shall be remitted, nolens volens, to the estate for life under the covenant, for the benefit of H. to whom a remainder was limited, which would be defeated by her taking under the feoffment. If tenant in tail enfeoff his son within age and die, the issue in tail shall be remitted. Averments made out of time are idle and not traversable. An exception that crosses the grant, or is repugnant to it, is void. Moor. 872. 422, 423. Mo. 104. Dower. Jac. Rot. 810. SIR JOHN SHERLY, knight, and Dorothy his wife, late 2 Cro. 488. wife of Sir Henry Bowyer, brought a writ of dower against 2 Roll. Rep. Barbary Wood, widow, of lands in Hartfield, ex dotatione 33. m. 2 Rolls Bowyer quondam viri sui. The tenant pleaded, that the $70, 872. post same Bowyer, being seized of the manor of Wilborough, Sussex. H. 10 in the same county, did make a feoffment thereof, to the and Tr. 10. Jac. use of himself and the said Dorothy, then his wife, for Rot. 3803. term of their lives, for the jointure of the said wife, the remainder to one Bowyer, and then died; and that the said Dorothy held her in by survivor, claiming her said estate, and so demanded judgment. The demandant replied, that before the said feoffment made, the said Sir Henry Bowyer, being seized of the said manor, did covenant to stand seized thereof, (by the name of his land in Sussex, except such as he had devised, or should devise by his last will and testament, and in the end his plea avers that he made no devise thereof,) to the use of himself in tail, the remainder to his said wife for term of life, the remainder to Sir Thomas Hendly in tail, and after- Mo. 872. ward made the feoffment prout, and then died without issue; and that she entered and was seized by force of 65. [71 a] 357. a. Co. L. Post. 255. accord. a remitter; whereunto the tenant rejoins that she held her claiming her estate, by the feoffment in jointure, and demands judgment, whether against that claim she could be remitted; upon which plea the demandants demurred. And Nichols, Winch, and myself held the tenant's plea insufficient; but Warberton was of the contrary opinion. And first was held, that the remitter to the woman could not work till her husband was dead without issue, because till then the possession and right did not meet together in her. (1) Also we held, that because both the Post 255. Sid. estates were made unto her during coverture, that therefore regularly upon the death of her husband she might claim which estate she would, according to the books of Mich. 2. and 3 Eliz. Dyer 191. and 18 Eliz. Dyer 351: But I, speaking last, added this distinction, that though this were true, where the election did concern nobody but herself, (and so are those two cases there, without prejudice to a third person,) yet here Hendly was in remainder by the first conveyance, and not so by the second; and therefore it should be a prejudice to him in his remainder, (which rose together with the first estate, and that they two together make but (as it were) one estate to some purposes; for perhaps upon a grant of reversion it might be otherwise,) if the law should not judge her in her remitter at the first, volens nolens. And so is the judgment expressly 41 E. 3. 17. in John Sayes' case, and never judgment to the contrary since. And so I hold, with Littleton, if a tenant in tail enfeoff his son for benefit of a within age, and die, the issue in tail shall be remitted, being a kind of third person, by the intent of the statute of Westm. the 2.; though temps E. 1. Fitz. Remitter 13. the reporter be of a contrary opinion. Now according to my opinion, a plea of claim by force of the jointure is utterly avoided by the necessity of the remitter wrought by act in law. But if the election be allowed free, yet the claim by force of the jointure was pleaded out of time, Remitter, volens nolens, third person. (1) For the law of Remitter, see Co. Lit. Lib. 3. ch. 12. Sec. 659, et seq. [71 b] 2 Cr. 490. and so is idle, and requires no traverse; (2) whereof the reason is plain, for the statute of uses hath a general purview, that jointures made for wives, without distinguishing before or after coverture, shall bar dower, and then comes with a proviso, that, if it be made during coverture, she may refuse it and take her dower, which is a kind of remedy provided for her out of the generality of the law, and therefore must be pleaded by her. And in this case there appeared nothing to the court, until the tenant first pleaded, of any other estate that the demandant had, but only the title of dower, and therefore it was in vain to plead that she claimed by her jointure, because Pleas out of a there appeared no other estate to claim by; like unto the time are idle, point in the latter end of Walsingham's case, where the able. averment, that Sir Thomas Wyat had issue alive, was holden void. And so there, if a man bring an action upon an obligation by J. S. and aver that he was then of full age, or plead a feoffment absolute and without condition, these averments are out of their place, and therefore void, and so the other party shall plead nonage or condition, and shall not traverse, but be traversed. And this was the main point; wherefore judgment was given for the demandant, because the remitter and the claim by force of that amounted to a refusal of the jointure, and therefore that should have been traversed. and not travers [72]. 1 Cr. 490. grant is void. Lastly, the exception I held to be void; for there could Exception that be no lands at the time devised, because Bowyer was crosseth the alive, and the exception of such lands, as he should after devise was repugnant, because the covenant was to take effect from the making of the indenture. As if a man should bargain and sell all his land (except such as he should after devise.) And besides, such an exception undoeth the whole grant, or pretended to put it in his power to revoke all, and therefore is void; as 18 Eliz. lib. Post. 170. (2) It is not necessary, in pleading, to state matter which would come more properly from the other side; or in other words, to negative the anticipated answer of the adversary; which, according to Hale, C. J. is 'like leaping before one comes to the stile.' See Com. Dig. Pleader (C. 81.) post 78, St John v. St John. 1 T. R. 638, Hotham v. E. I. Company. [72 a] A. If J. S. make a lease of all his land in Dale, except the manor of Dale, and he hath no lands there but the manor, the exception is void, and all will pass. (3) But here this point of the case was cleared, because it was averred that this manor was not devised. So judgment was given for the demandants, Warberton being to the contrary, and a writ of error was brought in the king's bench. (3) See Shep. Touch. vol. i. p. 78, et seq. 2 Bar. & Cres. 197, Cardigan v. Armitage. An exception shall be taken most favorably for the grantee, and if it is ambiguous, he shall have the benefit which may arise from such defect. 3 Johns. 375, Jackson v. Hudson. 8 Johns. 406, Jackson v. Gardner. If a grant of land be made, excepting and reserving all streams of water and the land under them and the right of erecting mills and milldams, and also such part of the said land as may be overflowed by means of such dams; the latter reservation is inoperative until the grantor has exercised his right to erect mills, &c. Considered merely as an exception in a deed, it is void for uncertainty, but it will operate as a reservation of a right to use the land for a specific purpose, which is an incorporeal hereditament and can pass only by grant. 4 Johns. 82, Thompson v. Gregory. An exception, in a deed of partition, of all places which may be found convenient for erecting mills on a certain creek, applies only to natural mill seats. 11 Johns. 191, Jackson v. Lawrence. A covenant or reservation to a stranger to the deed is void. 9 Johns. 73, Hornbeck v. Westbrook. 12 Johns. 199, Hornbeck v. Sleght. If tenant in fee and his wife convey lands, by indenture, in fee for valuable consideration, reserving to themselves the premises during their natural lives, this reservation cannot operate as an exception or reservation to the wife who survived; 20 Johns. 85, Jackson v. Swart. 3 Barn. & Ald. 66, Moore v. Plymouth; but it will operate as a covenant to stand seized to the use of the grantor for life, and after his death to the use of his wife for life. Jackson v. Swart, ub. sup. 4 Mass. 135, Wallis v. Wallis. 7 Mass. 384, Pray v. Peirce. A deed for a valuable consideration to be paid whenever the deed should take effect, with a proviso that the deed should not take effect but upon a remote contingency, is void. 12 Mass. 93, Welch v. Foster. A deed containing a reservation of a highway laid out across the land conveyed, 'to be kept open forever,' is not an exception of any part of the land, but amounts only to a declaration that a way is to continue, notwithstanding the grant. 13 Mass. 256, Alden v. Murdock. Jenk. Cent. 293. 1 Rolls. 754, 755. 1 Ro. FOREST US. SANDLAND. Principal and bail cannot join in a writ of error upon the several judgments against them. FRANCIS FOREST, a Frenchman, brought an assumpsit R. 29. Rolls against Sir James Sandland, and one Doctor Tenant was 1 Cro. 286, 300, his bail, and judgment was given in the king's bench Rep. 294. m. 464. 2 Cro. 171. Yelv. 157. 1 Cro. 403, 300, Cr. Car. 236, against the principal, and after, by scire fac., against the [72 b] bail; and now the principal and bail joined in one writ of error in the exchequer, and it was abated by judgment, Jones 325. because they could not join; and it was desired that the 574. Godb. 440. bail might have a new writ of error by himself, quod 408, 464, 574. coram vobis residet; but it was denied him, both because Cr. Jac. 171. the scire fac. is none of the action, wherein the writ of 1 Cro. 620. error is given in the exchequer chamber, and also because the record doth not abide before these judges, but in the king's bench; yet it was otherwise ruled heretofore, in the case of one Matthews, but it passed sub silentio. Jones 325. 4. 142, 300. 3 Cr. 730. Error. 2 Cro. writ lieth not Checq. chamb. 384. m. One upon the several judgments against principal and bail. Error out of the King's Bench, quod coram vobis residet. HUMBERTON vs. HowGIL. A covenous conveyance is void as to creditors. Fraud may be shown to defeat a conveyance in an issue on seizure in fee, but not in an issue on the feoffment. a Jenk. Cent. chamber. Nor 295. Cheq. folk T. 12 Jac. Rot. 2174. and H. 11. Jac. Rot. 801. Covenous Post. 166. Judgment. 'HUMBERTON recovered a debt against Thomas Howgil by judgment, who died, and upon a scire fac. against the terretenants, the sheriff returned John Howgil tenant of house that was his, at the time of judgment, in Yarmouth. John Howgil came in and pleaded that Thomas enfeoffed conveyance, him, long before the judgment, in fee, absque hoc, that he was seized at the time of the judgment or any time after; whereupon issue was taken, and the jury found the feoffment, but further said, that it was made by covin to defraud the plaintiff and other creditors.' And it was judged for the plaintiff; for Thomas remained still seized, as to the creditors, notwithstanding the feoffment. if the issue had been taken directly enfeoffed, or not enfeoffed, it had been found against the plaintiff'; for in that case he must avoid the feoffment by covin especially pleaded, for it is a feoffment tiel quel. As you cannot plead non est factum generally upon the statute of usury, or the statute of sheriffs; but here the issue is general seized, or not seized by the feoffment, like Gooches' case, 5 Co. 119. a. Co. lib. 5. fo. 60. And therefore the covin may be given in evidence, when the feoffment is given in evidence. (1) 1 Leon. 226. 8 Co. 119. b. Plo. 66. b. 3 Co. 59. b. Post, 166. accord. Jenk. Cent. 295. Det. 80. 3 Cro. 233. |