sect. 535. 25 way of seisin of the rent. E. 3. 44. 49 E. 6. 34 H. 6. 42. cution, 63. 40 H. 6. 6 b. 7 (Post, 281 a.) (380)* For albeit the rent be not due before the 3. 15. 37 H.6. day, yet a payment of parcel of the rent beforehand is an actual sei39. 49 Ass. p. sin of the rent to have an assise. And so it is if he give an ox, a 15 E 3. Exe. horse, a sheep, a knife, or any other valuable thing, in name of seiE. 3. 22. 28 sin of the rent beforehand, this is good. And therefore a payment in name of seisin is more beneficial for the grantee, because that is Attorney, Br, both an actual seisin and an attornment in law; and yet being given 97. (6Rep.59.) before the day in which the rent is due, it shall not be abated *out of the rent. So as to give seisin of the rent, it is taken for part of the rent; but as to the payment of the rent, it is accounted as no part of the rent; and the reason of the diversity is, for that remedies to come to rights or duties are ever taken favourably. Here also appeareth that there is an actual seisin, or a seisin in deed of a rent, whereof (as Littleton here speaketh) an assise doth lie; and a LITTLETON seisin in law which the grantee hath by attornment before actual [Sect. 566. 315 a.] possession (1). 5. What te nants were compellable, to attorn. ALSO, if there be many joint tenants (33) which hold by ceror permitted tain services, and the lord grant to another the services, and one Attornment of the joint tenants attorn to the grantee, this is as good as if been made by all (34) had attorned, for that the seignory is entire, &c. might have one of several joint-tenants; 315 a. (1 Rol. Abr. 39 H. 6.3. 26. See Tooker's case, ubi su pra, and the authorities there cited. (2 Rol. Abr. 424. Post, 297 b.) or by the tenant's he r; (k) Vid. Lib. Here is to be observed what manner of tenants shall attorn to the grant. And first (i) if there be two or more joint-tenants, and one of them attorn, it is sufficient: for, as it hath been often said, there cannot be an attornment in part. And albeit there is great authority against Littleton, yet the law hath been adjudged according to Littleton's opinion (z), as it hath been in other of his cases when they have come in question: and as it is of an attornment, so it is of a seisin; a seisin of a rent by the hands of one joint-tenant is good for all, and a seisin of part of the rent is a good seisin of the whole. (k) If either the grantor or the grantee die, the attornment is 4. fol. 8. Lib.6. countermanded; but if the tenant die, he that hath his estate may fol. 57. Lib.9. attorn at any time. If the tenant grant over his estate, his assignee 4 H. 6. 29. may attorn. fol. 31. Vid. 18 E. 4. 10. or assignee. So it might have been made by an infant: (381)* (1) 48 E. 3. Age 33. 26 E. (7) If an infant hath lands by purchase or by descent, he shall be compelled to attorn in a per quæ servitia (▲ 1), and no *mischief to the infant; for when he cometh to full age, he may disclaim to hold of him, or he may say that he holds by lesser services: but there (33) que-et, L. and M. and Roh. (34) ussent attorne-attornerent, L. and M. and Roh. (1) This is only to be understood of a rent at common law; but if the rent is limited, as an use under the statute,-as if lands are conveyed by lease and release to A. and his heirs, to the use that B. may receive out of them an annual rent; the statute immediately executes the use of the rent in B.—[Butler, Note 274.] (z) The attornment of one joint-tenant was good, for both are tenants of the whole land; and since the whole services are due from both, either might consent for the whole. Gilb. Ten. 89. Ld. Raym. 312.-[Ed.] (A1) As to this writ see n. (L 1) infra.—[Ed.] should be a greater mischief for the lord if the attornment of an in- 3.62. 37 H.8. fant should not be good, for he should lose his services in the mean time. Br. 26 E.3.62. vit. 6. 2 E. 2. Attorn. 78. 2 E. 2. Ibid. 77. 18 H. 6. 2. Lib. 9. fol. 81, 85. Conye's case. 4 Mar. Dyer, 117. 21 E. 3. Age 85. 7 E. 2. Age 140. If an infant be a lessee, he shall be compelled to attorn in a quid juris clamat. The attornment of an infant to a grant by deed is good, and shall bind him, because it is a lawful act, albeit he be not upon that grant by deed compellable to attorn. Of baron and feme Littleton putteth many cases in this Chapter. secus as to a person being non compos (m) A man that is deaf and dumb, and yet hath understanding, may attorn by signs: (n) but one that is not compos mentis cannot attorn, for that he that hath no understanding cannot agree (7) 18 E. 3. 53. to the grant. What conveyances shall be good without attornments more shall be said in this Chapter in his proper place. (m) 26 E.3. 63. been made grant of re ALSO, if a man letteth tenements for term of years, by force LITTLETON. of which lease (35) the lessee is seised, and after the lessor by his [Sect. 567. 315 b.] deed grant the reversion to another for term of life, or in tail, or in Might have fee; it behoveth in such case that the tenant for years attorn, or by lessee for otherwise nothing shall pass to such grantee by such deed. And years, on a if in this case the tenant for years attorn to the grantee, then the version exfreehold shall presently pass to the grantee by such attornment, his estate; without any livery of seisin, &c. because if any livery of seisin, (36) &c. should be or were needful to be made, then the tenant for years should be, at the time of livery of seisin, ousted of his possession, (37) which should be against reason, &c. for Here Littleton having spoken of grants of seignorics and rentcharges, and rent-seck issuing out of land, here treateth of a grant of a reversion of land upon an estate for years; secing this grant of the reversion must be by deed, and the agreement of the lessee years requisite thereunto, the freehold and inheritance do pass thereby, as well as by livery of seisin, if it were in possession: and the grant of the reversion by deed with the attornment of the lessee, do countervail in law a feoffment by livery, as to the passing of the freehold and inheritance. pectant on 315 b. (382)* 25 E. 3. 53. "For term of years." (0) And yet a tenant by statute merchant, or by tenants or tenant by statute-staple, or by elegit, must also attorn; for the &c.; grantee may have a venire facias ad computandum, or tender the money, &c. and discharge the land; and if the reversion be granted by fine, they shall be compelled to attorn in a quid juris clamat. E. 3. 53. Brook. tit. E.3. Scir. Attorn. 48. 22 fac. 101. Dy. 1. 2. (37) le quel—que, L. and M. and Roh. (Ante, 113 a. 181 b.) LITTLETON. 315 b.] or by lessee for life on a grant of re version ex pectant on his estate; 315 b. *316 a. by curtesy or dower, though after assignment; (p) 10 H. 4. 11 H. 4. 18. 30 E. 3. 16. 38 E. 3. 23. 18 E. 3. 3. 10 E. 3. quid 41.41 E.3.18. juris clam. Temps E. 1. tit. Wast. 122. (383) * (Post, 54 a.) F.N.B.55. E. 4 E. 3. 26. And so the executors that have the land until the debts be paid must attorn upon the grant of the reversion, although they have not any certain term for years. ALSO, if tenements be letten to a man for term of life, or given in tail, saving the reversion, &c. if he in the reversion in such case grant the reversion to another by his deed, it behoveth that the tenant of the land attorn to the grantee in the life of the grantor, or otherwise the grant is void (38). Here Littleton speaketh of a reversion expectant upon an estate for life, or a gift in tail. "It behoveth that the tenant of the land* attorn to the granor by tenants tee, &c." Let us therefore speak first of tenant for life: and yet in some case albeit tenant for life hath granted over his estate, yet he shall attorn. (p) As if tenant in dower or by the curtesy grant ut Attorn.16. over his or her estate, and the heir grant over the reversion, the tenant in dower or by the curtesy may attorn, because at the time of the grant made they were attendant to the heir in reversion, and the grantee cannot be tenant in dower, or tenant by the curtesy. And if the reversion be granted by fine, the fine must suppose that the tenant in dower or by the curtesy did hold the land, albeit they had formerly granted over their estate, and albeit the reversion doth pass by the fine; yet the quid juris clamat must be brought against him that was tenant at the time of the note levied. But yet after the reversion is granted over, the grantee shall not have any action of waste against the tenant in dower or by the curtesy, but the action of waste must be brought against their assignee, and not (3 Rep. 23b.) against themselves; for tenant by the curtesy or tenant in dower cannot hold of any but of the heir: and therefore, in respect of the privity, they shall attorn and be subject to an action of waste, as long as the reversion remaineth in the heir, albeit they have granted over their whole estate. And it is worthy of the observation, that if the grantee of the reversion doth bring an action of waste (9) Regist. 72. against the assignee of the tenant by the curtesy, (q) the plaintiff must rehearse the statute, which proveth that no prohibition of waste in that case lay at the common law, as it did if the heir had brought it against the tenant by the curtesy itself; and therefore, some do hold, that if the heir do grant over the reversion that the attornment of the assignee of the tenant by the curtesy, or of tenant in dower, is sufficient, because they afterward must be attendant and subject to the action of waste. 26 E. 3. 62. 18 E. 4. 10 b. If the reversion of lessee for life be granted, and lessee for life. assign over his estate, the lessee cannot attorn; but the attornment of the assignee is good, because (as Littleton here saith) it behoveth that the tenant of the land do attorn, and after the assignment there is no tenure or attendance, &c. between the lessee and him in reversion. (38) &c. added in L. and M. and Roh. If lessee for life assigneth over his estate upon condition, he, hav- 5 H. 5. 10. ing nothing in him but a condition, shall not attorn; but the assignee may attorn, because he is tenant of the land. * LITTLETON. 316 a.] or by tenant IN the same manner is it, if land be (39) granted in tail, or let to a man for term of life (B 1), the remainder to another [Sect.569. (40) in fee, if he in the remainder will grant this remainder to another, &c. if the tenant of the land attorn in the life of the grantor then the grant of such a remainder is good, or otherwise not. for life, &c. the remaind on a grant of er expectant on his estate. (384)* 316 a. have been made by te Littleton also speaketh here of an attornment by tenant in tail; and true it is that he may attorn; but where the reversion is granted So it might by fine, he is not compellable to attorn, because he hath an estate of inheritance, which may continue for ever (c 1). is of a tenant in tail after possibility of issue extinct, he shall not be compelled to attorn for the inheritance which was once in him. 12 E. 4. 3. 4. 3 E. 4. 11. 43 E. 3. 1. 46 E. 3. 13. And so it nant in tail, on a grant of a remainder or reversion expectant on his estate; though he was not compellable to attorn: (Ante, 27 b.) 5 H. 5. (9 Rep. 85 b.) (r) But if tenant in tail, after possibility of issue extinct, grant over his estate, his assignee shall be compelled to attorn, because he never had but a bare state for life. *But as to tenant in tail, note a diversity between a quid juris clamat, and a quem redditum reddit, or a per quæ servitia; for against a tenant in tail no quid juris clamat lieth, as is aforesaid. But if a man make a gift in tail, the remainder in fee, and the seignory or rent-charge issuing out of the land be granted by fine, the conusee shall maintain a per qua servitia, or a quem redditum, and compel him to attorn; for herein his estate of inheritance is no privilege to him, for that a tenant in fee simple (as his estate was at common law,) is also compellable in these cases to attorn. (41) P. 12 Edw. 4. It is there holden by the whole court, that tenant in tail shall not be compelled to attorn, but if he will attorn gratis, it is good enough. (39) done en taile ou, not in L. and M. nor Roh. (40) en fee-&c. L. and M. (41) This paragraph not in L. and M. nor Roh. (B1) In the case of tenant for life, remainder in fee, if the remainder-man granted over his remainder, the attornment of the tenant for life, although he held of the very lord, and not of the remainder-man (supra, p. 367. n. (N.),) was yet necessary: 1st. Because the remainder-man came in by the feudal feoffment, and therefore the remainder could not pass without the utmost notoriety, and this was by attornment coram paribus, to which such notoriety was attributed, that the feudal feoffment could not be altered without it. And 2dly. Because the action of waste, and the right of forfeiture of tenant for life, accrued to him in remainder; and therefore the tenant for life, being to some purposes attendant on the remainder-man, it was fit that he should attorn to his grant. Gilb. Ten. 90, 91.—[Ed.] (c 1) And therefore he was looked upon as master of the estate, and was not bound to transfer the reversion according to the pleasure of the grantee. Besides, the statute law is, (385)* 316 b. 12 E. 4. 3, 4. LITTLETON. [Sect.571. 316 b.] In case of lease for years to one, remainder to another for life, attorn.. ment to a grant of the reversion, might have been made either. 316 b. *317 a. by *This is added to Littleton, and therefore, though it be good law, and the book truly cited, yet I pass it over. ALSO, if land be let to a man for years, the remainder to another for life, reserving to the lessor a certain rent by the year, and livery of seisin upon this is made to the tenant for years; if he in the reversion in this case grant the reversion to another, (42) &c. and the tenant which is in the remainder after the term of years (43) attorn, this is a good attornment, and he to whom this reversion is granted by force of such attornment shall distrain the tenant for years for the rent due after such attornment, albeit that the tenant for years did never attorn unto him. And the cause is, for that where the reversion is depending upon an estate of freehold, it sufficeth that the tenant of the freehold do attorn upon such a grant of the reversion, &c. "It sufficeth that the tenant of the freehold do attorn." (1) Note Littleton saith not here, that the tenant of the frank-tenement ought in this case to attorn, but that it sufficeth that he doth attorn. Pasch. 13 El. And I heard Sir James Dyer, chief justice of the common pleas, hold, that in this case if the tenant for years did attorn, it would vest the reversion; for seeing the estate for years is able to support the estate for life, he shall bind him in the remainder by his attornment in respect of his estate and privity. in Brasbritche's case, in Com. Banco. LITTLETON. [Sect.572. 317 a.] (Ante, 143 a. 20. Post 247 a. 308 a.) Rol. Abr. 60. 424.) (386)* 317 a. And it is to be understood, that where a lease for years, or for life, or a gift in tail, is made to any man, reserving to such lessor or donor a certain rent, &c. if such lessor or donor grant his reversion to another, and the tenant of the land attorn, the rent passeth to the grantee, although that in the deed of the grant of the reversion no mention be made of the rent, for that the rent is incident to the reversion in *such case, and not è converso, &c. For if a man will grant the rent in such case to another, reserving to him the reversion of the land, albeit the tenant attorn to the grantee, this shall be but a rent-seck, &c. Of this Littleton hath spoken before, in the Chapter of Rents. 318 a. And here it is good to be seen what grantors or others that make On a grant of conveyances, &c. are such as their grants or conveyances are either holden of the good without attornment, or where the tenant is no way compellable king without to attorn. Tenant for life shall not be compelled to attorn in a quid a reversion license, te (42) &c. not in L. and M. nor Roh. (43) soy, not in L. and M. nor Roh. that the will of the donor be observed, and therefore he could not be compelled to transfer the tenure; but if he attorned gratis, it was good, because then it could not be presumed to be to the prejudice of his issue. Gilb. Ten. 103.—[Ed.] (1) Two reasons are given for this. One is, that the possession of the tenant for years is the possession of the immediate freeholder. See Brediman's case, 6 Rep. 56 b. The other reason is, that as the termor for years held of the reversioner, and pays the services to him, so the tenant for life holds also of him. Thus as both hold estates of the reversioner, either of them may attorn. [Butler, note 275.] |