grant a man cannot prescribe in a que estate, but only in him and his ancestors. AND here note, that such things, which cannot be granted, LITTLETON. nor aliened, without deed or fine, a man, which will have such [Sect. 183. 120 b.] things by prescription, cannot otherwise prescribe, but in him For things that lie in How pleaded. and in his ancestors, whose heir he is, and not by these words, in him and them whose estate he hath; for that he cannot have their estate without deed or other writing, the which ought to be shewed to the court, if he will take any advantage of it. And because the grant and alienation of a villain in gross (3) lieth not without deed, or other writing, a man cannot prescribe in a villain in gross, without shewing forth a writing, but in himself which claims the villain, and in his ancestors whose heir he is. But of such things, which are regardant or appending to a manor, or to other lands and tenements, a man may prescribe, that he, and they whose estate he hath, who were seised of the manor, or of such lands and tenements, &c. have been seised of those things, as regardant or appendant to the manor, or to such lands and tenements (4) time out of mind of man, &c. (5) (1). And the reason is, for that such manor or lands and (6) tenements may pass by alienation without deed (K), &c. Secus as to things regardant or appendant to a manor, &c.; "Que estate, &c." whose estate he hath. Quorum statum, as much as to say, 121 a. 6. 12 H. 7. 16. 18. lent rule, (c) that a man cannot prescribe in any thing by a (c) 22 Ass. 53. 23 Ass. que estate, that lieth in grant, and cannot pass without deed (Doct. Pla. 502, 303, or fine; but in him and his ancestors he may, because he $04.) comes in by descent without any conveyance. Neither can a man plead a que estate in himself, of any thing, that cannot (3) en gros not in L. and M. nor Roh. (4) &c. in L. and M. and Rob. (5) court instead of &c. in L. and M. and Roh. (6) ou instead of et in L. and M. (I) If a person prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connexion: but if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. Therefore a man may prescribe, that he, and those whose estate he has in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. 2 Bl. Com. 265, 266. So also a person may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his an cestors. Mellor v. Spateman, 1 Saund. 3-16.-[Ed.] (K) That is, at common law. See stat. 29 Cha. 2. c. 3.—[Ed.] Of what estate a que estate may be pleaded, and by and in whom it must be alleged. (g) 41 Ass. 2. 40 Ass. 15 E. 4. 1. 5 H. 7. 39. pass without deed; (d) but in another he may, as, in bar of an avowry, the plaintiff may plead a que estate in the seignory in the avowant (L). But Littleton's words are to be observed, (a man which will have such things by prescription). Therefore (e) when a thing, that lieth in grant, is but a conveyance to the thing claimed by prescription, there a que estate may be alleged of a thing that lieth in grant; as a map may prescribe, that he and his ancestors, and all those whose estate he hath in an hundred, have time out of mind, &c. had a leet, &c. this is good, &c.(M). (f) Regularly the plaintiff shall not entitle him by a que estate, but he must shew how he came by it; but, after avowry made, the plaintiff shall plead a que estate, because he is now become as a defendant. (g) A man may plead a que estate of a tenancy in tail, or of an estate for life, so as he averreth the life of them; but he cannot plead a que estate of a lease for years (7) (N), or at will. 7 E. 6. tit. Que Estate, Br. 31. 27 H. 6. 3. 7 El. Dyer 238. (1 Co. 46. (h) 22 H. 6. 34. (h) A disseisor, abator, intruder, recoveror, or any other 31 H. 8. that cometh in the post, * shall plead a que estate. 6 E. 4. 12. 39 H. 6. 14. 9 H. 6. Estop. 25. *121 b. (i) 11 H. 4. 81. 27 H. 6. 32. 9 E. 4. 3. 2 E. 6. tit. Que Estate 8. 1 E. 6. Que Estate, Br. 49. (Cro. Cha. 54. i Lev. 190.) (i) A que estate must be alleged in the tenant or defendant himself (0), and not in one in the mean conveyance, (7) But see 1 Lev. 190. and 1 Sid. 298.-[Hargr. n. 6. 121 a.] (L) As that I. S. whose estate the lord has in the seignory released to him, &c.; for, if he, under whom the lord claims, had no title to the services demanded, the lord can have none, nor shall the plaintiff be bound to shew the conveyance to which he is not privy. Hawk. Abr. 179. Bro. Abr. Que Estate, 3.-[Ed.] (M) For the title to the hundred is not in question, but whether the leet be incident to the hundred. Hawk. Abr. 179.-[Ed.] (N) A man cannot plead a que estate of a term for years in himself; because it cannot be gained by disseisin as a fee may, nor by occupancy, as a freehold might formerly have been gained, but by mesne assignment, or conveyance, which ought to be shewn: but one may plead a que estate of a lease for years in a stranger, because he is not privy to his title. Cotes v. Wade, 1 Lev. 190.-[Ed.] (0) If the defendant be a particular tenant, as tenant for years, the plea must set forth the seisin in fee, the prescription, and the demise from the tenant in fee to the defendant; for a prescription in a que estute must always be laid in the person, who is seised of the fee-simple. A tenant for life, for years, or at will, or a copyholder, cannot prescribe in this from whom he claimeth; and yet some books be to the contrary (P). manner, by reason of the imbecility of their estates: for, as prescription is always beyond time of memory, it would be absurd that those, whose estates commenced within the memory of man, should pretend to prescribe for any thing; and therefore a tenant for life must prescribe under cover of the tenant in fee-simple; and a copyholder, under cover of his lord. 4 Co. 31, 32. 2 Bl. Com. 265.-[Ed.] (P) With respect to the descent of estates gained by prescription, Sir William Blackstone observes, that estates of this kind are not of course descendible to the heirs generally, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and, therefore, if a man prescribes for a right of way, in himself and his ancestors, it will descend only to the blood of that line of ancestors, in whom he so prescribes; the prescription in this case being, indeed, a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate, in which the prescription is laid, and be inheritable in the same manner; whether that were acquired by descent or purchase; for every accessory follows the nature of its principal. 2 Bl. Com. 266.-[Ed.] 206 CHAP. XXXII. OF TITLE BY FORFEITURE. 59 a. Definition of forfeiture. 251a. 1. By matter in pais. (1 Rol. Abr. 630.) Alienation by matter in pais for a greater estate than the tenant has, Vid. sect. 581. 609, FORFEITURE. The adjective in Latin is forisfactus, the verb is forisfacere, and the noun forisfactura. They are all derived of foris, (that is) extra, and facere, quasi diceret, extra legem seu consuetudinem facere, to do a thing against, or without law or custom; and that legally is called a forfeiture ( A ). It is to be observed, that a forfeiture may be made by the alienation of a particular tenant, two manner of ways; either in pais, or by matter of record. In pais, of lands and tenements which lie in livery, where a greater estate passeth by livery than the particular tenant operates as a forfeiture. may lawfully make, whereby the reversion or remainder is devested, as in the example that Littleton (sect. 416.) putteth, when tenant for life alieneth *in fee, which must be understood of a feoffment, fine, or recovery by consent (B). 610, 611. *251 b. (1 Rep. 14.) (A) Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments: whereby he loses all his interest therein, and they go to the party injured, as a recompence for the wrong which either he alone, or the public together with himself, has sustained. Forfeiture by alienation contrary to law, is either alienation in mortmain (as to which see ant. 2 b. vol. 1. p. 188.), alienation to an alien, (ant. 2 b. vol. 1. p. 91), or alienation by particular tenants, which last kind forms the subject matter of this chapter; in the two former cases the forfeiture arises from the incapacity of the alienee to take, in the latter, from the incapacity of the alienor to grant. 2 Bl. Com. 267, 268.-[Ed.] (B) Sir William Blackstone mentions two reasons, why such alienation by a particular tenant, is a forfeiture of his estate: 1st. because such alienation amounts to a renunciation of the feudal connexion and dependence; it implies a refusal to perform the due renders and services to the lord of the fee, of which feaity is constantly one; and it tends in its consequences to defeat and devest the remainder or reversion expectant: as, therefore, that is put in jeopardy, by such act of the particular tenant, it is but just, that, upon discovery, the particular estate should be for feited and taken from him, who has shewn so manifest an inclination to make an ill use of it. The other reason is, because the particular tenant by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. 2 Bl. Com. 274, 275.—[Ed.] If tenant for life, and he in the remainder for life, in Lit- 17 El. Dy. 339. 16 El. Dy. 324. tleton's case, had joined in a feoffment in fee, this had been a forfeiture of both their estates, because he in the remainder is particeps injuriæ. And so it is, if he in the remainder for life had entered, and disseised tenant for life, and made a feoffment in fee, this had been a forfeiture of the right of his remainder. deed. 33 E. 3. Devise 21. 15 E. 4. 9. Vid. sect. A particular estate of any thing that lies in grant, cannot Secus as to things în be forfeited by any grant in fee by deed. As if tenant for life grant, if aliened by or years, of an advowson, rent, common, or of a reversion or remainder of land, by deed grant the same in fee, this is no forfeiture of their estates, for that nothing passes thereby, but that which lawfully may pass; and of that opinion is Littleton in our books. But, if tenant for life or years of land, the reversion or remainder being in the king, make a feoffment in fee, this is a forfeiture, and yet no reversion or remainder is devested out of the king and the reason is, in respect of the solemnity of the feoffment by livery, tending to the king's disherison. 603, 609, 610. By matter of record, and that by three manner of ways. 2. By matter of record: First, by alienation. Secondly, by claiming a greater estate than he ought. Thirdly, by affirming the reversion or re mainder to be in a stranger. (*) 15 E. 4. 9. First, by alienation; and that of two sorts, viz. by aliena- as by alienation, tion devesting, or not devesting, the reversion or remainder. (Post, 332 b. 1 Leon. 40. 1 Rol. Abr. 855.) Devesting, as by levying of a fine, or suffering a common recovery of lands, whereby the reversion or remainder is devested: not devesting, as by levying of a fine in fee, of an advowson, rent, common, or any other thing that lieth in grant: and of this opinion is Littleton in our books (*). And so note two diversities: first, between a grant by fine (which is of record) and a grant by deed in pais; and yet in this they both agree, that the reversion or remainder in neither case is devested: secondly, between a matter of record, as a fine, &c. and a deed recorded, as a deed inrolled, for that worketh no forfeiture, because the deed is the original (c). (C) And the deed itself, which makes the conveyance, is merely matter in pais, though it be afterwards recorded. Hawk. Abr. 339.—[Ed.] 31 E. 3. Gr. 62. 14 E. 3. 3. Avow. 117. |