516 CHAP. XLI. SAME SUBJECT. OF A CONFIRMATION. 295 b. Definition of a con- CONFIRMATION, confirmatio, cometh of the verb (*)confirmare, quod est firmum fucere: and therefore it is (*) it. pag. sequen. said, that confirmatio omnes supplet defectus, licèt id quod Bract. lib. 2.58. Its nature and operation. Bract. lib. 2. fol. 27. Pl. Com. Count de actum est abinitio, non valuit. A confirmation is a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased (A). A confirmation doth not strengthen a void estate (B). Confirmatio est nulla ubi donum præcedens est invalidum, et ubi 58. 38 H. 6. 34. 37. donatio nulla omnino nec valebit confirmatio: for a confirmation may make a voidable or defeasible estate good, but it cannot work upon an estate that is void in law. Non valet confirmatio nisi ille qui confirmat sit in possessione rei, vel juris unde fieri debet confirmatio, et eodem modo nisi ille cui confirmatio sit, sit in possessione. And another saith, (a) Confirmare est id quod prius infirmum fuit firmare. Et donationum alia incepta, et defectiva, et post tempus confirmata, 10 E. 2. Confirm. 24. 32 E. 3.9. (a) Fleta, lib. 3. cap. 14. & lib. 3. cap. 3. (A) A confirmation is defined by Lord Ch. B. Gilbert to be an approba tion of, or assent to an estate already created; by which the confirmor, as far as it is in his power, strengthens and makes it valid. The operation of this species of assurance is not, regularly, to create an estate, thongh such words may be used in a confirmation as may increase or enlarge the estate; but that is by force of such words, and is foreign to the business of confirmation. Ten. 75. And wherever an estate is to be enlarged by a confirmation, privity is requisite, as weil as in the case of a release. Infra, 296 a. The effect of a confirmation is to give validity to a voidable or defeasible estate; but it cannot operate upon an estate which is absolutely void. Supra, 295 b. The proper technical words of a confirmation are, ratify, approve, and confirm, Infra, sect. 520; but the words "give and grant, or demise," have the same effect in some cases as the word "confirm." infra, sect. 531.-[Ed.} (B) Though it be a rule that things ipso facto void cannot be made good by acceptance, yet it is not without exception; as if tenant in tail nakes a lease to commence in futuro, and dies before the day, and the lessce enters, the issue in tail may have an action of trespass against him, or he may by acceptance make it good. Per Holt, C. J. Pulien v. Purbeck, 19 Mod. S61.-[Ed.] confirmatio enim omnem supplet defectum, poterit enim esse in pendenti donec per ratihabitionem hæredis cùm ad ætatem pervenerit roboretur. Here it is to be observed, that there be two kinds of con- The different kinds. firmations, viz. confirmations express or in deed, whereof Littleton (sect. 515) hath put three examples, and confirmations implied, or in law, whereof Littleton hereafter speaketh in this chapter. Quælibet confirmatio, aut est per- Lib. 9. fol, 148. ficiens, crescens, aut diminuens; and of all these Littleton putteth examples in this chapter. And hereof Fleta saith, carta autem de confirmatione est illa quæ alterius factum consolidat & confirmat, & nihil novi attribuit, quandoque tamen confirmat & addit (c). A DEED of confirmation is commonly in this form, or to this effect: Know all men, &c. that I A. of B. have ratified, approved, and confirmed to C. of D. the estate and possession which I have, of and in one messuage, &c. with the appurtenances in F. &c. Here first our author shews what a confirmation is: "Ratificasse," Ratificare est ratum facere, and is æquipollent to confirmare, which, as hath been said, is firmum facere. "Approbasse" cometh of ad and probo, which is to make perfect and good. Beamond's case. LITTLETON. [Sect. 515. 295 b.] by what words made. 1. Confirmation in deed, 295 b. Bract. lib. 2. fol. 32 b. & 58, 59. Brit. 235. 44 Ass. 3. LITTLETON. [Sect. 531. 301 b.] 2. Confirmation in law, by what words created. ALSO, in some case, this verb dedi, (1) or this verb concessi, hath the same effect in substance, and shall enure to the same intent, as this verb confirmavi. As if I be disseised of a carve of land, and (2) 1 make such a deed; sciant præsentes, &c. quòd dedi to the disseisor (3), &c. or quòd concessi to the Operation of the word, said disseisor, the said carve, &c. and I deliver only the deed to him without any livery of seisin of the land, this is a good (1) ou-et, L. and M. and Roh. (2) puis, added L. and M. and Roh. (3) &c. VEL QUOD CONCESSI a le disseisor, &c. not in L. and M. nor Roh. (C) See Beamond's case, 9 Co. 142.-[Ed.] 66 grant," 301 b. Bract. lib. 2. fol. 59 b. 21 H. 6. feofment & faits 103. 22 H. 6. 42. 14 H. 4. 36. 19 H. 6. 44. 7 H. 7. 16. confirmation, and as strong in law, as if there had been in the deed this verb confirmavi, &c. Here Littleton proceedeth, according to the former division, to shew words that in law do amount to a confirmation. And here is to be observed, that some words are large, and have a general extent, and some have a proper and particular application. The former sort may contain the latter; as dedi, or concessi, may amount to a grant, a feoffment, a gift, a lease, a release, a confirination, a surrender, &c. and it is in the election of the party to use to which of these purposes he will. S2 E. 3. Briefe 291. 14 H. 4. 36. Lib. 5. fol. 15. in Newcomen's case. *302 a. And he to whom such a deed comprehending dedi, &c. is made, may plead it as a grant, as a relcase, or as a coufirmation, at his election (D). or If a parson and ordinary make a lease for years of the glebe to the patron, and the *patron by his deed granteth it over, if the disseisor granteth a rent to the disseisee, and he by his deed granteth it over, and after re-enter; in both these cases one and the same words do amount both to a grant, and to a confirmation in judgment of law of one and the same thing; (Ant. 280. Post, 298. ne res pereat. And so it is if a disseisor make a lease for 5 Rep. 15, 16.) 302 a. Bract. lib. 2. fol. 59 b. life, or a gift in tail, the remainder to the disseisee in fee, the disseisee by his deed granteth over the remainder, the particular tenant attorneth, the disseisee shall not enter upon the tenant for life, or in tail, for then he should avoid his own grant, which amounted to a grant of the estate, and a confirmation also. Est autem confirmatio quasi quædam ratihabitio, sufficit tamen quandoque per se, si etiam in se contineat donationem, ut si dicat quis, dedi et confirmaci, licèt juvari possit ex aliquâ donatione præcedente. (D) But a lease and release, either at the common law, or through the medium of a bargain and sale, cannot be pleaded as a feotiment, Bro. Feofment, pl. 44. Vin. Abr. B. 2. pl. 1. 2 Prest. Conv. 238: nor as a grant of the reversion. Noy.66.—[ Ed.] 169. Mo. 34. Plo. 397, 398.) But a release, confirmation, or surrender, &c. cannot (4 Rep. 80 b. 2 Cro. amount to a grant, &c. nor a surrender to a confirmation, or to a release, &c. because these be proper and peculiar manner of conveyances, and are destined to a special end (E). "demise," (b) 32 E. 3. Briefe Confirm. 20. Vid. 291. Brooke tit. le stat. de Gloc. ca. 4. "Dedi et concessi, &c." Here is implied that there be more words than dedi and concessi, that will amount to a confirmation, as dimisi. (b) In ancient statutes and in original writs, as in the writ of entry in casu proviso, in consimili casu ad communem legem, and many others, this word dimisi is not applied only to a lease for life, but to a gift in tail, and to a state in fee. (c) Also if a man make a lease to A. for years, (c) 7 E. 3. 9. and after by his deed the lessor voluit quòd haberet et teneret terram pro termino vita sua; this is adjudged by this verb (volo) to be a good confirmation for term of his life. Benignè enim faciendæ sunt interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quàm pereat. ALSO, if a man be disseised, and the disseisor die seised, and his heir is in by descent, *and after the disseisee and the heir (4) of the disseisor make jointly a deed to another in fee, and livery of seisin is made upon this, (as to the heir of the disseisor that sealed the deed) the tenements do pass (5), and enure by the same deed by way of feoffment; and as to the disseisee, who sealed the deed, this shall enure, (6) but by way of confirmation. But if the disseisee in this case brings a writ of entry in the per and cui against the alienee (7) of the heir of the disseisor; quære, how he shall plead this deed against the demandant by way of confirmation (8). " will." Bracton. (Plo. 159.) 303 a. Lib. 1. fol. 146, 147. "Quære, how he shall plead this deed, &c." He may plead the feoffment of the heir of the disseisor, and the confirma- Mayowe's case, tion of the disseisee, as it hath been pleaded and allowed. (4) le disseisor, not in L. and M. nor Roh. (5) et uront, not in L. and M. nor Roh. (6) sinon-mes, L. and M. and Roh. (7) del-le, L. and M. and Rob. (8) &c. not in L. and M. nor Rob. (E) That a release may operate as a substantive grant when it is made by the owner of a reversion or remainder, see 2 Prest. Conv. 332. 459. As to the effect of the word "grant," in implying a warranty, see ante, p. 252, 254. n. (I) and (K).~[Ed.] 302 a. *302b. 21 H. 7. 34 b. Pl. Com. 59 a. in Wimbishe's case. (6 Rep. 15 a.) Pl. Pl Com. 59 a. ing's case. 2 H. 5.7. 4 a. 27 H. 8. 13. "As to the heir of the disseisor, &c. the tenements do pass by way of feoffment." For *the land shall ever pass from him that hath the state of the land in him. As if cestuy que use and his feoffees, after the statute of 1 R. 3. and before the statute of 27 H. 8. cap. 10. had joined in a feoffment, it shall be the feoffment of the feoffees, because the state of the land was in them. So it is, if the tenant for life, and he in the remainder, or reversion in fee, join in a feoffment by deed; the livery of 13 H. 7. 11. 13 E. 4. the freehold shall move from the lessee, and the inheritance from him in the reversion or remainder, from each of them according to his estate. For it cannot be adjudged by law, that the feoffment of tenant for life, doth draw the reversion or remainder out of the lessor or him in remainder, or doth work a wrong because they joined together (F). M. 16 & 17 El. 339. Lib. 1. fol. 76. Bredou's case. (Post, 251 b.) 17 Eliz. Dyer 339. (1 Leo. 31.) (1 Leo. 57. 262.) If there be tenant for life, the remainder in tail, &c. and tenaut for life and he in the remainder in tail levy a fine, this is no discontinuance or divesting of any estate in remainder, but each of them pass that which they have power and authority to pass. A. tenant for life, the remainder to B. for life, the remainder in tail, the remainder to the right heirs of B.; A. and B. join in a feoffment by deed, albeit it may be said that this is the feoffment of A. and the confirmation of B. and consequently be, in the remainder in tail cannot enter for the forfeiture during the life of B., but because B. joined in the feoffment, which was tortious to him in the remainder in tail, and is particeps criminis, therefore they forfeited both their estates, and he in the remainder in tail might enter for the forfeiture. But if he in the reversion in fee and tenant for (F) So if tenant for life, and he in the remainder in fee, join in a lease for years by deed indented, it is the lease of the tenant for life, and the confirmation of remainder-man, while the tenant for life lives; and after his death, it is the lease of the remainder-man aud confirmation of the tenant for life; and so it must be pleaded; for if the lessee be ejected, and bring an ejectment, and declare of a lease by both, it shall be adjudged against him. Ante, 45 a. p. 431. So if tenant for life, and he in remainder, join in a grant of their copyhold, but one fine is due. So if a surrender be made, and after a recovery is had by plaint, in the nature of a writ of entry, for better assurance, only one fine is due. Gilb. Ten. 333, 334 Co. Copy. s. 56.--[ Ed.] |