Secus where he was in by title paramount, either (393)* after the grantee die without heir, now the services of the mesnally shall come and escheat to the lord paramount by way of by act of law, escheat; (52) and if afterwards the services of the mesnalty be behind, in this case he which was lord paramount may distrain the tenant, notwithstanding that the tenant did *never attorn: and the cause is, for that the mesnalty was in deed in the grantee by force of the (53) said fine, and the lord paramount may avow upon the grantee, because in deed he was his tenant, albeit he shall not be compelled to this, &c. But if the grantor in this case had died without heir in the life of the grantee, then he should be compelled to avow upon the grantee; and also, inasmuch the lord paramount doth not claim the mesnalty by force of the grant made by fine levied by the mesne (54), but by virtue of his seignory paramount, (55) viz. by way of escheat, he shall avow upon the tenant for the services which the mesne had, &c. albeit that the tenant did never attorn. 321 a. 45 E. 3. 2. 31 H. 6. 7. 37 H. 6. 38. 39 H. 6. 32. 5 H.7.18. per curiam. Lib. 6. fol. 68. Here Littleton putteth the case where one that claimeth under a conusee by fine may distrain or maintain any action, albeit there was never any attornment made to the conusee, or to him that hath his estate. And here is a diversity between an act in law that giveth one inheritance in lieu of another, and an act in law that conveyeth the estate of the conusee only. Of the former Littleton here putteth an example of the escheat of the mesnalty which drowneth the seignory paramount; and therefore reason would that the lord by this act in law should have as much benefit of the mesnalty escheated, as he had of the seignory that is drowned; and the rather for that the law casteth it upon him, and he hath no remedy to compel the tenant to *attorn. Another reason hereof Littleton here yieldeth, because the lord cometh to the mesnalty by a seignory paramount, and therefore there needeth no attornment. (u) As if lessee for life be of a 18. 39 H. 6. manor, and he surrender his estate to the lessor, there needeth no 38. perPrisot. attornment of the tenant's, because the lessor is in by a title paramount. But if the conusee dieth, and the law casteth his seignory upon his heir by descent, he shall not be in any better estate than his ancestor was, because he claimeth as heir merely by the conusee. *321 b. (u) Temps E. 2. Attorn. (Ante, 104 b. 309 b.) (5 Rep. 113.) (394)* Sir Moyle Finche's case, pra. So it is (as hath been said) if the conusce of a fine before *attornment bargaineth and selleth the seignory by deed indented and inrolled, the bargainee shall not distrain, because the bargainor, from whom the seignory moveth, had never actual possession. So, and from the same reason, if a reversion be granted by fine, ubi su- and the conusee before attornment disseise the tenant for life, and make a feoffment in fee, and the lessee re-enter, the feoffee shall not distrain. (52) et, not in L. and M. nor Roh. (54) &c. added in L. and M. and Roh. (55) scilicet, not in L. and M. nor Roh. IN the same manner it is, where the reversion of a tenant for life is granted by fine to another in fee, and the grantee afterwards dieth without heir, now the lord hath the reversion by way of escheat; and if after the tenant maketh waste, the lord shall have a writ of waste against him, notwithstanding that he never attorned causâ quâ suprâ. But where a man claimeth by force of the grant made by the fine, (56) scil. as heir or assignee, &c. there he shall not distrain, (57) nor avow, nor have an action of waste, &c. without attornment. LITTLETON. [Sect. 584. 321 b.] 321 b. or partly by and partly by party; act of law, act of the (Ante, 104 b.) H.4. Avowrie 64. 1 Rol. Here Littleton expresseth two diversities. First, between an act curiam. in law, and the grant of the party. This case is put of an (w) es- 237. (4 Rep. cheat, which is a mere act in law, but so it is when it is partly by Abr.293. Ant. act in law, and partly by the act of the party; as if the conusee of 153 a.) Lib.6. a statute merchant extendeth a seignory or rent, he shall distrain Moyle without any attornment. fol. 68. in Sir Finche's tute of uses; If a man make a lease for life or years, and after levy a fine to A. or by the stato the use of B. and his heirs, B. shall distrain and have an action of waste, albeit the conusee never had any attornment, because the reversion is vested in him by force of the statute, and hath no remedy to compel the lessee to attorn (м 1). And so it is of a bargain and sale by deed indented and *inrolled, (Ant. 309. 2 but this is by force of a statute since Littleton wrote. Secondly, where he that cometh in by act in law is in the per, as the heir of the conusee, who sitteth in his ancestor's seat, tanquam pars antecessoris de sanguine; and the lord by escheat, which is a stranger, and cometh in merely in the post. Cro. 193. 5 Rep. 113a. 6 Rep. 68b. 10 Rep. 45.) (395)* (F. N. B. ALSO, in ancient boroughs and cities, where lands and tene- LITTLETON. ments within the same boroughs and cities, are devisable by tes- [Sect.585. 322 a.] tament by custom and use, &c. if in such (58) borough or city or in the case a man be seised of a rent-service, or of a rent-charge, and devi- of Be seth such rent or service to another by his testament and dieth; 121 n.) in this case, he to whom such devise is made, may distrain the tenant for the rent or service arere, although the tenant did never attorn. Here doth Littleton put a case where a man may have a seignory, rent, reversion, or remainder, merely by the act of the party, and may distrain, and have any action without any attornment, and that is by devise of lands devisable by custom when Littleton wrote, by the last will and testament of the owner. (56) &c. added in L. and M. and Roh. (57) ne avowera, not in L. and M. nor Roh. nor in MSS. 322 a. 34 H.6.6. 19 H. 6. 21. F.N.B. 121 n. 5 H. 7. 18. 21 H. 6. 38. (58) cas, added in L. and M. and Roh. (M 1) See supra, n. (L 1), p. 391.—[ Ed.] IN the same manner is it, where a man letteth such tenements devisable to another for life, or for years, and deviseth the reversion by his testament to another in fee, or in fee-tail, and dieth, and after the tenant commits waste, he to whom the devise was made shall have a writ of waste, although the tenant doth never attorn. And the reason is, for that the will of the devisor made by his testament shall be performed according to the intent of the devisor; and if the effect of this should lie upon the attornment of the tenant (59) then perchance the tenant would never attorn, and then the will of the devisor should never be performed, (60) &c. and for this the devisee shall distrain, &c. or he shall have an action of waste, &c. without attornment. For if a man deviseth such tenements to *another by his testament, habendum sibi in perpetuum, and dieth, and the devisee enter, he hath a fee-simple, causâ quâ supra; (61) yet (62) if a deed of feoffment had been (63) made to him by the devisor of the same tenements, habendum sibi in perpetuum, and livery of seisin were made upon this, he should have an estate but for term of his life. Here "For if a man deviseth such tenements to another, &c." Littleton putteth a case where the intent of the testator shall be taken, viz. where a man by devise shall have a fee-simple without these words (heirs); and here Littleton putteth the diversity between a will and a feoffment. Now by the statutes of 32 and 34 H. 8. (as hath been said in the Chapter of Burgage) lands, tenements, and hereditaments, are devisable, as by the said acts do appear. Both this and the precedent case stand upon one and the same reason, which Littleton here yieldeth, viz. because that the will of the devisor expressed by his testament shall be performed according to the intent of the devisor; and it shall not lie in the power of the tenant or lessee to frustrate the will of the devisor by denying his attornment. Here Littleton mentioneth a maxim of the common fol. 11. & fol. law, viz. Quod ultima voluntas testatoris est perimplenda secunlib. 2. cap. 15. dum veram intentionem suam: and Reipublicæ interest suprema Britt. fol. 78. hominum testamenta rata haberi (N 1). (1 Rol. Abr. 293.) Vide sect. 167. Bract. lib. 1. 60. Fleta, & fol. 212 b. (6 Rep. 23. Ant. 9 b.) LITTLETON. [Sect.587. 322 b.] 8. Of attorn ALSO, if a man be seised of a manor which is parcel in demesne and parcel in service, and is thereof disseised, but the tenants which hold of the manor do never attorn (64) to the dis (59) &c. added in L. and M. and Roh. (62) si-le L. and M. and Roh. (N 1) With respect to those cases in which attornment was not requisite, it may be further observed, that where the grant was in the personalty, there needed no attornment. And therefore in grants of annuities, which charge the person of the grantor only, and not his land, attornment was unnecessary. And in all cases where there was an attornment in law, there needed no attornment in deed. Ante, 312 b. p. 370, 371 Sheph. Touch. 258. -[Ed.] tates by dis seisin, &c. seisor; in this case, albeit the disseisor dieth seised, and his heir ment to esis in by descent, &c. yet may the disseisee distrain for the rent behind, and have the services, &c. But if the tenants come to the disseisor and say, We become your tenants, &c. or *make to him some other attornment, &c. and after the disseisor dieth seised, then the disseisee cannot distrain for the rent, &c. for that all the manor descendeth to the heir of the disseisor, &c. (397)* 322 b. #323 a. Littleton having spoken of estates gained by lawful conveyances, doth now speak of estates gained by wrong; and here putteth a case (6 Rep. 69 a.) of a disseisin of a manor, where it appeareth, that the disseisor cannot disseise the lord of the rents or services without the attornment of the tenants to the disseisor; for seeing an attornment is requisite to a feoffment and other lawful conveyances, à fortiori, a disseisor or other wrong-doer shall not gain them without attornment. The like law is of an abator and intruder. But albeit the disseisor hath once gotten the attornment of the tenants and payment of their rents, yet may they refuse afterwards for avoiding of their double 1 charge (o 1). 6 H. 7. 14. 11 H.7.28. H. 4. 14a. b. (Cro. Car. 308. Ante, 180.) Attornment to a disseisor nants of a manor, part part in ser And here the attornment of the tenant of a manor to a disseisor by the te of the demesnes shall dispossess the lord of the rents and services parcel of the manor, because both demesnes, rents, and services, make but one entire manor, and the demesnes are the principal: but otherwise it is of rents and services in gross, as in this next section our author teaches us. BUT if one holdeth of me by rent-service, which is a service in gross (65), and not by reason of my manor, and another* that hath no right, (66) claimeth the rent, (67) and receives and taketh the same rent of my tenant by coercion of distress, or by other form, and disseiseth me by such taking of the rent: albeit such disseisor dieth so seised in taking of the rent, yet after his death I may well distrain the tenant for the rent which was (65) et nient per reason de mon mannor, not in L. and M. nor Roh. claima-claimant mesme, L. and M. and Roh. vice, dispos lord of the sessed the rents and LITTLETON. case of rents 1 Rol. Abr. 179 k.) (398)* (67) et receive-a receiver, L. and M. and Roh. (o 1) Where a man was disseised of the demesnes of his manor, the services yet remained in him, because the right to the services, by the feudal contract, was not devested out of him by the wrongful possession of the demesnes of his manor; but as all the feudal services were to be done in support of the manor, the knight-services being the attendances of such tenants in the general defence of the realm, embodied under the lord of the demesnes, who carried provisions to subsist them; and the socage services were the actual ploughing of the demesnes of the lord; therefore if the tenants attorned to a disseisor, it put him into the possession of such services, as accessory and belonging to the demesnes of the manor; and if the disseisor died seised of such demesnes as the principal after attornment, then the disseisee could not distrain for the accessory right of the services: but though the tenants did attorn to the disseisor, yet they might afterwards refuse, to avoid the double charge, since this did not take away the right of the disseisee, either to enter into the demesnes, or distrain for the services; for till the right of possession was gained by a descent, the discontinuee might recontinue which part of the manor he pleased. Gilb. Ten. 105, 106. Watk. Desc. 61. Ld. Raym. 862. Hal. Hist. 107.-[Ed.] (Ant. 189b. 2 Siderf. 75.) LITTLETON. Rep. 77.) *323 b. behind before the (68) decease of the disseisor, and also after his decease. And the cause is, for that such disseisor is not my disseisor but at my election, and will. For albeit he taketh the rent of my tenant, &c. yet I may at all times distrain my tenant for the rent behind (69), so as it is to me, but as if I will suffer the tenant to be so long time behind (70) in payment of the same rent unto, &c. FOR the payment of my tenant to another to whom he ought [Sect.589. not to pay, is no disseisin to me, nor shall oust me of my rent 323 a.] without my will (71) and election, &c. For although I may have an assise against such pernor, yet this is at my election, *whether I will take him as my disseisor or no. So such descents of rents in gross shall not oust the lord of his distress, but at any time he may well distrain for the rent behind, &c. And in this case if after the distress of him which so wrongfully took the rent, I grant by my deed the service to another, and the tenant attorn, this is good enough, and the services by such grant and attornment are presently in the grantee, &c. (This also proveth that the right owner is not out of possession, and that this grant over is a demonstration of his election that he is in possession.) But otherwise it is where the rent is parcel of a manor, and the disseisor dieth seised of the whole manor, as in the case next before is said, &c. [COKE, 323 b.] (Post, sect. 541.) 323 a. (2 Rep. 37. 9 Rep. 51. Hob. 322.) * Here Littleton putteth a diversity between a rent-service parcel of a manor, whereof he had spoken before, and a rent-service in gross. For a man cannot be disseised of a rent-service in gross, rent-charge, or rent-seck, by attornment or payment of the rent to a stranger, but at his election: for the rule of law is, Nemo redditum alterius invito domino percipere aut possidere potest; (*) Vid. Post, and our author teacheth (*) us what be disseisins of rent-services, Sect. 237,238, rent-charges, and rent-secks, and payment to a stranger is none of them, but at the lord's election, as our author here saith. (399)* 239, 240. (Cro. Car. 303.) 24 E. 3. 4. 1 E. 5. 5. See the authori "Pernor," i. e. the taker of my rent. But if the disseisee bring an assise against such a pernor, then he doth admit himself out of lowing in the possession. ties there fol next para graph. 5 E. 4. 1. 23 "Descents." A descent of a rent in gross bindeth not the right H. 3. tit. Ass. Owner but that he may distrain, albeit he admitted himself out of possession, and determined his election, as by bringing of an assise, &c. 439. 24 E. 3. 48. 34. 16 Ass. p. 15. 16 E. 3. Re lease 56. 1 E. 5. 5. F.N. E. 4. 8. Fle If the tenant of the land pay the rent to a stranger which hath no B. 179 E. 15 right thereunto, and the right owner release to him, this release is ta, lib.4. c.12. good, because he thereby admitted himself to be out of possession. But if the tenant hath given him any thing in name of attornment, and the right owner had released to him, this release had been void, because an attornment only can be no disseisin of the rent. (68) decease-distress, L. and M. and Roh. (69) &c. added in L. and M. and Roh. (70) pur-de, L. and M. and Roh. |