Moveable feesimple.

Herbage.
[46]

pleasure [all which pass by the general name of land]. And lastly, the earth has, in law, a great extent upwards, not only of water. as hath been said, but of air, and of all other things, even up to heaven; for cujus est solum ejus est usque ad cœlum.

And albeit land, whereof our author here speaks, be the most firm and fixed inheritance, and fee-simple the highest and most absolute estate that a man can have; yet may the same at several times be moveable, sometime in one person and alternis vicibus in another; nay, sometime in one place and sometime in another. As for example, if there be eighty acres of meadow, which have been used time out of mind to be divided between certain persons, so that a certain number of acres appertain to each person individually; as for example, to A. thirteen acres to be yearly assigned and lotted out, so as sometime the thirteen acres lie in one place and sometime in another, and so of the rest; A. has a moveable fee-simple in thirteen acres which may be parcel of his manor or lordship, albeit they have no certain place but are yearly set out in several places, so that the number only is certain, and the particular acres or place wherein they lie after the year is uncertain. And so it was adjudged in Bridgwater's case. If a partition be made between two coparceners of one and the same land, viz. that the one shall have the land from Easter until Lammas to her and to her heirs, and the other shall have it from Lammas till Easter to her and her heirs, or that the one shall have it the first year, and the other the second year, alternis vicibus, &c. that also is a case wherein two persons have several inheritances in the same land at several times. So it is if two coparceners have two several manors by descent, and they make partition, that the one shall have the one manor for a year, and the other the other manor for the same year, and after that year then that she who had the one manor shall have the other, et sic alternis vicibus for ever, this is a good partition, and although the manors be several, yet are they certain, and it is therefore stronger than Bridgwater's case; so that this makes a division of estates into certain or immoveable, whereof Littleton here speaks, and uncertain and moveable, whereof these three cases for examples have been put; and in these cases it is to be noted, that the possession is not only several, but the inheritance is general also.

It is also necessary to be seen by what names lands shall pass. If a man has twenty acres of land, and by deed grants to

another and his heirs vesturam terræ, and makes livery of seisin secundam formam charta, the land itself shall not pass, because he has a particular right in the land; for thereby he shall not have the houses, timber-trees, mines, and other real things parcel of the inheritance, but he shall have the vesture of the land, (that is) the corn, grass, underwood, sweepage, and the like, and he shall have an action of trespass quare clausum fregit. The same law is if a man grant herbagium terra, he has a like particular right in the land, and shall have an action quare clausum fregit; but by grant thereof and livery made the soil shall not pass, as is aforesaid. If a man let to B. the herbage of his woods, and after grants all his lands in the tenure possession or occupation of B., the woods shall pass, for B. hath a particular possession and occupation, which is sufficient in this case; and so it was resolved.

So if a man be seised of a river, and by deed grants seperalem Fishery. piscariam in the same, and makes livery of seisin secundum formam charta, the soil does not pass nor the water, for the grantor may take water there, and if the river becomes dry, he may take the benefit of the soil; for there passed to the grantee but a particular right, and the livery being made secundum formam chartæ cannot enlarge the grant. For the same reason, if a man grant aquam suam, the soil shall not pass, but the fishery within the water passes therewith. And land covered with water shall be demanded by the name of so many acres covered with water; whereby it appears that they are distinct things.

So if a man grant to another to dig turf in his land and to carry Turf. it away at his will and pleasure, the land shall not pass, for part only of the profit is given viz. the turf, and not the trees, mines, &c.

But if a man seised of lands in fee, by his deed grants to another the profit of those lands, to have and to hold to him and his heirs, and makes livery secundum formam charta, the whole land itself does pass; for what is the land but the profits thereof, for thereby vesture, herbage, trees, mines, and all whatsoever is parcel of the land passes.

Rents and profits include the land itself.

same.

A man seised of divers acres of wood, grants to another omnes Woods; the boscos suos, all his woods, not only the woods growing upon the land pass, but the land itself, and by the name [of land covered with

Pustures.

Meadows.

Heath.

[5a]

Rushes.
Marshes.

Honour.

Isle.

Castle.

Town.

Farm.

Grange.

Pool.

wood] shall it be recovered in a præcipe; for boscos does not only include the trees but the land also whereupon they grow.

If a man grants all his pastures, pasturas, the land itself employed in the feeding of beasts shall pass, and also such pastures or feedings as he hath in another man's soil. So if a man grant omnia prata sua, all his meadows, the land itself of that kind shall pass; et dicitur pratum quasi paratum, because it grows spontaneously without manurance. A man grants omnes brueras suas, the soil where the heath grows shall pass. And by the grant of omnes juncarias or joncarias, the soil where rushes grow shall pass; and he that grants omnes mariscos suos, does convey all his fens and marshy grounds. By grants of these particular kinds of land, the lands of the description named only do pass; but, as hath been said, by the grant of land in general, all these particular kinds and some others pass.

By the name of an honour, which a subject may have, divers manors and lands may pass. So by the name of an isle, insula, many manors lands and tenements may pass. And by the name of a castle, one or more manors may be conveyed; et è converso, by the name of a manor &c. a castle may pass. But note by the way, that no subject can build a castle or house of strength embattled &c. or other fortress defensible, without the license of the king, for the danger which might ensue if every man at his pleasure might thus entrench himself. By the name of a town, villa, a manor may pass. And by the name of a manor, divers towns may pass.

By the name of a ferme or farm, firma, houses, lands, and tenements may pass; and firma is derived of the Saxon word fevrmian, to feed or relieve, for in ancient time were reserved upon these leases cattle and other provisions for the lessor's sustenance. Note, a farm in the north part is called a tack, in Lancashire a farm-holt, in Essex a wike; but the word farm is the general word, and anciently fundus signified a farm, and sometimes land. Lands making a knight's fee shall pass by the grant of a knight's fee, de uno feodo militis. By the name of a grange, grangia, a house or edifice, not only where corn is stored up as in barns, but necessary places for husbandry also, as stables for hay and horses, and stables and styes for other cattle, and a curtilage, and the close wherein it stands shall pass. Stagnum, in English, a pool, consists of water and land:

and therefore by the name of stugnum, or a pool, the water and [56] land shall pass also.

Chase.

So it is of a forest, park, chase, vivary, and warren in a man's Forest. own ground, by the grant of any of them, not only the privilege but Park. the land itself passes.

By the grant of a messuage or house, the orchard, garden, and curtilage do pass, and so an acre or more may pass by the name of a house.

Messuage and curtilage.

[6a]

By the name of minera, or fodina plumbi, &c. the land itself shall Mines. pass in a grant, if livery be made, and so shall it be recovered in an assize.

By the grant of a foldcourse, or the like, lands and tenements Fold-course. may pass; [contrà it is presumed of a sheep-walk.]

Tenementum, tenement, is a large word to pass not only lands Tenementsand other hereditaments and inheritances which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, wherein a man may have a frank-tenement and whereof he

can be said to be seised ut de libero tenemento. But hæreditamentum, Hereditaments. hereditament, is the largest word of all in that kind; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real, personal, or mixed.

A man seised of land in fee having divers charters, deeds, and evi- Deeds. dences, makes a feoffment in fee, either without warranty, or with warranty against him and his heirs only [as covenants and warranties are at this day usually made]; the purchaser shall have all the charters, deeds, and evidences, as incident to the lands, et ratione terra, to the end he may the better defend the land himself, if he has no warranty to recover in value; for the evidences are, as it were, the sinews of the land, and the feoffor not being bound to warranty, has no use of them. But if the feoffor be bound to warranty [that is, if he warrants the title generally] so that he is bound to render in value [against whoever claims], then is the defence of the title at his own peril; and therefore the feoffee in that case shall have no deeds that comprehend warranty whereof the feoffor may take advantage. Also he [the feoffor] shall [in such case] have such

Habendum.

Parts of a

deed.

charters as may serve him to deraigne the warranty paramount. Also he shall have all deeds and evidences which are material for the maintenance of the title to the land, but other evidences which concern the possession and not the title of the land [as leases], the feoffee shall have them.

To have and to hold.] These two words in this place prove a double signification, viz. to have an estate of inheritance of lands descendible to his heirs, and to hold the same of some superior lord.

There are eight formal or orderly parts of a deed of feoffment, viz. 1. the premises which are implied by Littleton; 2. the habendum, whereof Littleton speaks; 3. the tenendum, mentioned by Littleton; 4. the reddendum; 5. the clause of warranty; 6. the in cujus rei testimonium, comprehending the sealing; 7. the date of the deed, containing the day, the month, the year, and style of the king or of the year of our Lord; lastly, the clause of his testibus. The office of the premises of the deed is twofold: first, rightly to name the feoffor and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment, either by express words or which may by reference be reduced to a certainty, for certum est quod certum reddi potest. The habendum has also two parts, viz. first, to name again the feoffee; and secondly, to limit the certainty of the estate. The tenendum at this day, where the fee simple passes, must be of the chief lords of the fee. And of the reddendum, more shall be said in its proper place in the Chapter of Rents. Of the clause of warranty, more shall be said in the Chapter of Warranties. In cujus rei testimoninm sigilum meum apposui is added, for the seal is an essential part of the deed. The date of the deed many times antiquity omitted; and the reason thereof was, for that the limitation of prescription or time of memory, did often in process of time change, and the law was then holden, that a deed bearing date before the limited time of prescription was not pleadable; and therefore they made their deed without date, to the end they might allege them within the time of prescription. And the date of the deeds was commonly added in the reign of Edw. 2 and Edw. 3, and so ever since. And sometimes antiquity added a place, as datum apud D. which was in disadvantage of the feoffee, for if the deed be general, he may allege it to be made where he will. And, lastly, antiquity did add