317 a. 318 a. On a grant of a reversion holden of the king with out licence, tenant for life was not compellable to attorn, in a quid juris clamat. 45 E. 3. 6 b. 13 Eliz. Dier 188. Lib. 3. such case, Of this Littleton hath spoken before, in the Chapter of Rents. And here it is good to be seen what grautors or others that make conveyances, &c. are such as their grants or conveyances are either good without attornment, or where the tenant is no way compeliable to attorn. Tenant for life shall not be compelled to attorn in a quid juris clamat (E 1) upon a grant of a reversion by fine holden of the king in chief without li fol. 86. Justice Wind- cence; but the reason hereof is, not because the tenant for life might be charged with the fine, for his estate was more ancient than the fine levied, but because the court will not suffer a prejudice to the king, and the king may seise the reversion and rent, and so the tenant shall be attendant to anNor was the tenant com- other. Also it is a general rule, that when the grant by fine pellable to attorn, when agrant by fine was de- is defeasible, there the tenant shall not be compelled to at ham's case. feasible. 36 H. 6. 24. (1 Rol. Abr. 297.) 5 E. 3. 25. 31 E. 3. Antient Demesne 16. 24 E. 3. 25 b. 37 H. 6. 33. 48 E. 3. 23. torn. As if an infant levy a fine, this is defeasible by writ of error during his minority, and therefore the tenant shall not be compelled to attorn. So if the land be holden in ancient demesne, and he in the reversion levieth a fine of the reversion at the common law, the tenant shall not be compellable to attorn, because the estate that passed is reversible in a writ of deceit. So if tenant in tail had levied a fine, the tenant should not be compelled to attorn, because it was defeasible by the issue in tail. But now the statutes of 4 H. 7. and 52 H. 8. having given a further strength to fines to bar the issue in tail, the reason of the common law being taken away, the tenant in this case (E 1) See n. (L 1) infra-[Ed] shall be compelled to attorn, as it was adjudged (*) in Jus- () Lib. 5. fol. 86. tice Windham's case. Justice Windham's case. 18. If an alienation be in mortmain, the tenant shall not be 17 E. 3. 7. 22 E. 3. compelled to attoru, because the lord paramount may defeat it. 320 a. On attornment by the tenant for life in a quid juris clamat, without saving his privilege, his if 10 E. 3.7. 43 E. 3. 5. It is said in our books, that if tenant for life have a privilege not to be impeachable of waste, or any other privilege, if he doth attorn without saving his privilege, that he hath lost it; which is so to be understood, where he attorns in a privilege was lost. quid juris clamat brought by the conusee of a fine, that he claimeth not his privilege, but attorn generally, his privilege is lost, for that the writ supposeth him to be but a bare tenant for life; and by his general attornment, according to the writ, he is barred for ever to claim any privilege but bare estate for life. a 48 E. 3. 32. 45 E. 3. 6. 24 E. 3. 32. S9 H. 6. 25. 21 E. 3. 48. F. N. B. 136 b. (3 Rep. 36. 11 Rep. 79. 1 Rol. Abr. 412. 296. Post, 274 b.) Secus as to an attorn. ment in deed; or in law ; *$20 b. But if upon a grant of the reversion by deed, the tenant for life doth attorn, he loseth no privilege, for there can be no conclusion or bar by the attornment in pais: and so it is of an attornment in law. As if the lessor disseise the lessee for life, and make a feoffment in fee, and the lessee re-enter; this is an attornment in law, which shall not prejudice him *of any privilege: so it is if the lessor levy a fine of the reversion, and the conusee die without heir, whereby the reversion escheateth, in this case the law doth supply an attornment, and therefore the lessee shall lose no privilege. But in the or where he claimed his privilege in the quid quid juris clamat, if the lessee shew his estate and his privilege, juris clamat. (8 Rep. 59 b.) (Post, 157 b.) and is ready, saving to him his privilege, &c. to attorn, hereby either his privilege shall be allowed and entered of record, or he shall not be compelled to attorn (F 1): (s) and if the (s) 43 E. 3. 5. (6 Rep. plaintiff be within age, so as he cannot acknowledge the pri- 4. vilege, the tenant shall not be compelled to attorn until his ́ (F1) Tenant for life, without impeachment of waste, was not compel lable to attorn in the quid juris clamat, unless his privilege was allowed; because the fine being a final agreement, with the utmost notoriety, in the king's court, the tenant could have no new privilege, but what appeared of record. So if the grantee sued a scire facias against the tenant, and had judgment to execute the fine for any part of the services, it was an attornment for the whole; for the tenant had opportunity to plead in the scire facias, why he should not be compelled to attorn. Ante, 314b. p. 375. Gilb. Ten. 103, 4.-[Ed.] 9 Rep. 85 b.) 45 E. 3. 11 a. Vet. full age, when he may acknowledge it. But otherwise it is N. B. in per quæ ser vitia. 5 E. 3. Mesne, (as some hold) if a quid juris clamat be brought by baron 56. & per quæ ser vitia 16. 37 H. 6. 33, and feme, the privilege shall be entered into the roll, not39 H. 6. 25. 18 E. 4. withstanding she is a feme covert. And in a per quæ servitia 7. (7. Rep. 4 b.) Vid. sect. 557. LITTLETON. cases unnecessary. site to a release by one brought by the conusee of the mesne, the tenant may shew that he held by homage ancestrel, and saving to him his warranty and acquittal, he is ready to attorn. In the same manner, if the tenant hath any other acquittal, and the mesne levy a fine to one for life, the remainder to another in fee, the tenant for life bringeth a per qua servitia, and the tenant is ready to attorn, saving his acquittal, and the plaintiff acknowledgeth it, and thereupon the tenant attorn, tenant for life dieth; in this case, albeit regularly the attornment to the tenant for life is an attornment to him in the remainder, yet in this case he in the remainder shall not distrain, till he hath acknowledged the acquittal, which must be in a per quæ servitia, brought by him against the tenant. ALSO, if two joint-tenants be, who let their land to an[Sect. 574. 318a.] other for term of life, rendering to them and to their heirs 6. Attornment, in what a certain yearly rent; in this case, if one of the joint-tenants Attornment not requi- in the reversion release to the other joint-tenant in the same reversion, this release is good, and he to whom the release is made shall have only the rent of the tenant for life, and shall only have a writ of waste against him, torned by force of such release (44), &c. for the privity which once was between and them in the reversion (G 1). joint-tenant to his companion; 318 a. 2 Eliz. Dier 176. (Ante, 185 a.) (6 Rep. 78. 2 Rol. Abr. 403. Ant. 193a.) although he never at And the reason is, the tenant for life "For the privity, &c." For if one joint-tenant make a lease for years, reserving a rent, and dieth, the survivor shall not have the rent; and therefore Littleton here addeth mate rially, for the privity that was between the tenant for life and them in the reversion. "Two joint-tenants." And so it is (as it is here to be un (44) &c. not in L. and M. nor Roh. (G1) And, as both of them had the reversion, the tenant for life was tenant to them both, and consequently there could be no nced of any subsequent consent to create a new tenancy; and payment of the rent, and performance of the services, to one only, was a sufficient notoriety, that the whole fee was in him alone. Gilb. Ten. 92.—[Ed.] derstood) albeit there be three or more joint-tenants, and one of them releaseth to one of the other. It is true, that there is a difference between these releases; for the release in the one case maketh no degree, but he to whom the release is made is supposed in from the first feoffor; and in the other it worketh a degree, and he to whom the release is made is in the per by him; yet in neither of these cases there is requisite any attornment, for both of them are within Littleton's reason (for the privity, &c.) IN the same manner, and for the same cause, is it, where a man letteth land to another for life, the remainder to another for life, reserving the reversion to the (45) lessor; in this case, if he in the reversion releaseth to him in the remainder and to his heirs all his right, &c. then he in the remainder hath a fee, &c. and he shall have a writ of waste against the tenant for life without any attornment of him, &c. (H 1). This needeth no explanation. ALSO, if a lease be made for life, the remainder to another in tail, the remainder over to the right heirs of the tenant for life; in this case, if the tenunt for life grant his remainder in fee to another by his deed, this remainder maintenant passeth by the deed without any attornment (46), &c. for that if any ought to attorn in this case, it should be the tenant for life, and in vain it were that he should attorn upon his own grunt, &c. Here it appeareth, that where the ancestor taketh an estate of freehold, and after a remainder is limited to his right heirs, that the fee-simple vesteth in himself, as well as if it had been limited to him and his heirs; for his right heirs (45) lessour-luy, L. and M. and Roh. (46) &c. not in L. and M. nor Roh. (H1) Lord Ch. B. Gilbert observes upon this section, that there needed no notoriety to the first tenant for life, because he had already assented to the limitation of the remainder, in the original creation of the fend and therefore there was no danger that he should be subjected to his enemy, and there was sufficient notoriety to all strangers by his holding of him in the remainder. Ten. 92.-[Ed.] ; (1 Rep. 669.) (Ante, 54 b.) are in this case words of limitation of estate, and not of purchase (1 1). Otherwise it is where the ancestor taketh but an estate for years; as if a lease for years be made to A., the remainder to B. in tail, the remainder to the right heirs of A., there the remainder vesteth not iu A., but the right heirs shall take by purchase, if A. die during the estate tail (K 1); for, as the ancestor and the heir are correlativa of inheritances, so are the testator and executor, or the intestate and administrator of chattels. And so it is if A. make a feoffment in fee to the use of B. for life, and after to the use of C. for life or in tail, and after to the use of the right heirs of (1 Rol. Abr. 627.) B., B. hath the fee-simple in him as well when it is by way of limitation of use, as when it is by act executed. LITTLETON. 7. What a grantee by tornment. able without action, but could neither dis ALSO, if there be lord and tenant, and the tenant hold[Sect. 579. 319b.] eth of the lord by certain rent, and knight-service, if the fine might do before at- lord grant the services of his tenant by fine, the services are Might take things seiz- presently in the grantee by force of the fine; but yet the lord may not distrain for any parcel of the services, without attornment: but if the tenant dieth, his heir within age, the lord shall have the wardship*of the body of the heir, and of his lands, &c. albeit he never attorned, because that the seignory was in the grantee presently by force of the fine. And also in such case, if the tenant die without heir, the lord shall have the tenancy by way of escheat. train, nor maintain actions requiring privity. *320 a. (I 1) See ant. 22 b. p. 140–143. 2 Atk. 57. 247. 1 Ves. 175. 177. Dougl. 506 n. 1. Fearn. Cont. Rem. 4th edit. 30. 102.—[Ed.] (K 1) Acc. 1 Co. 104 a. Fearn. Cont. Rem. 65. 4th edit. 482. The reason of the difference, says Ld. Ch. B. Gilbert, is, that in the first case the tenant for life is tenant to the lord, being properly feoffatus within the statute of Quia emptores. And therefore when a remainder is after wards limited to the right heirs of teuant for life, such tenant shall be in the homage of his lord, because he has an inheritance for which he ought to avow to venture his life, and the lord shall have the fruits of such feudal inheritance; for if the intermediate estate be extinct, during the minority of the heir, the lord shall have the ward and marriage of him, and shall have the heriot of such tenaut dying seised. Hal. Fitzh. 145. And by consequence the inheritance must be supposed to reside in the tenant for life. But in the second case the tenant for years is not the feoffatus; for the proper person to take by the feoflment is the freeholder, and the tenant for years is but the bailiff to the freeholder; and it is the freeholder who is attendant to the superior lord, who may be in his homage and holds of him, and from whom the services are due. Therefore this remainder to the right heirs, is not immediately vested in the tenant for years, because the heir is the first that can have the freehold, as feudal tenant to the lord; and therefore, by the words of the grant, he must be the first purchaser of such freehold; and because the tenant for years cannot hold of the lord, or the lord avow upon him, no other interpretation can be made. Gilb. Ten, 96, 97.-[Ed.] |