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Discontinuance.

tenant in tail and entry of the issue. (a) The tenant in tail has Of formedon, consequently no reversion left in him, and can neither bring an action of waste, nor enter for a forfeiture. (b) The alienee is seised of a base fee descendible to his heirs, out of which his wife is dowable during the continuance of the fee, and until the entry of the issue in tail. (c)

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By statute 32 Hen. 8, c. 28, tenants in tail in their own right, may bind their issue in tail, but not those in reversion or remainder, by leases for three lives or twenty-one years, observing the requisites of the statute, and such leases will not be a discontinuance. (d)

reversion, exe

Where tenant in tail in possession leases to another for the III. By alienalife of the lessee, this, as it has been shewn, is only a discontinu- tion for life, and ance for the life of the lessee, during which period the tenant subsequent conin tail enjoys a wrongful reversion in fee. If this reversion is veyance of the granted to a third person, and the tenant in tail dies, living the cuted in the lessee for life, and then the lessee for life dies, the discontinu- lifetime of tenance is determined. But if the lessee for life dies in the lifetime ant in tail. of tenant in tail, whereby the reversion is executed, a discontinuance in fee is created. (e) This will also be the case if the lessee for life, living the tenant in tail, surrenders to the grantee of the reversion, or if the latter recovers in an action of waste, or enters for a forfeiture. (f) And when tenant in tail leases for the life of the lessee, and afterwards releases to him and his heirs all his right, this is a discontinuance in fee, because the reversion is executed in the lifetime of the tenant in tail, and the tenant for life becomes seised of the wrongful fee in possession. (g) In these cases, however, it is necessary, in order to make a discontinuance, that the grantee of the reversion should be in by the grant of the tenant in tail, for if tenant in tail makes a lease for life and then grants the reversion in fee, and the grantee of the reversion grants it over, and the tenant for life dies, so that the reversion is executed in the lifetime of the tenant in tail, yet this is no discontinuance. (h) It is also necessary, that the

(4) Machell v. Clarke, 2 Salk. 619, 2 L. Raym. 782.

(b) Co. Litt. 331, a.

(c) Cally's Case, 2+ Ed. 3. 28, b. Fitz. Ab. Dower, 98. Br. Ab. Dower, 50. Seymor's Case, 10 Rep. 96, a. 1 Sauad. 261, a, note (3). Park on Dower, 148.

(4) Horton v. Bole, Vaugh. 383. For

the requisites of leases under this sta-
tute, see Co. Litt. 44, a and b. Prest.
Shep.Touch. 277, and Bacon's Abridgm.
Leases, (D).

(e) Litt. s. 620, 622.

(ƒ) Litt. s. 621. Co. Litt. 333, b. (g) Co. Litt. 333, b. Br. Ab. Discont. de pos. 3.

(h) Co. Litt. $53, b.

E

Discontinuance.

Of formedon. alienee should be seised of a fee-simple, executed in possession, in the lifetime of the tenant in tail. Thus, if tenant in tail makes a lease for the life of the lessee, and then releases to him and his heirs, this is an absolute discontinuance, for the fee-simple is executed in the lifetime of tenant in tail. But, if B. tenant in tail, makes a gift in tail to A., and then releases to A. and his heirs, and afterwards A. dies without issue, the issue of B. may enter, "Because," says Sir Edward Coke, "B. had not seisin and execution of the reversion of the land in his demesne as of fee." (a) As the estate tail could not merge in the fee, the feesimple was never executed in possession in A.

The principle upon which these cases rest appears to be this: that the tenant in tail can exercise his power of discontinuing his estate in his lifetime only. When he leases for the life of the lessee, he creates a discontinuance for life only, and, unless by some further act, executed in his lifetime, he creates a discontinuance in fee, the issue upon the death of tenant for life may enter. The simple conveyance of the reversion by grant, which is a rightful conveyance, is no discontinuance; but, if that conveyance be executed in the lifetime of the tenant in tail, it is then the same in its result as an immediate conveyance of the fee by feoffment. (b) The following is the explanation of this doctrine given by C. B. Gilbert." Tenant in tail has the right of possession inheritable, and, therefore, he may discontinue the same in fee by his feoffment, because, since he has an inheritable possession, it follows, of consequence, that he may alien it without any disseisin to any person; but, if he only makes a lease for life, he executes but part of his power, for, since he had a possession inheritable, he, from that possession, has privilege to alien without disseisin to any one; and, therefore, after such lease for life he grants the reversion in fee, and tenant for life attorns, and after tenant for life dies, and the grantee of the reversion enters in the life of tenant in tail, this is a discontinuance of the fee, for, since he had originally an inheritable possession, this is an execution of the farther remaining part of his power, and amounts to an alienation of the fee by a second feoffment, for having originally an inheritable possession, he might discontinue the same in fee, and, when he executes but part of his power, the rest remains in him, and, therefore, if he

(a) Co. Litt. 333, b.

(b) Co. Litt. 333, b..Gilb. Ten, 121.

has afterwards opportunity in his life, he may execute it by a se- Of formedon." cond alienation." (a)

Discontinuance.

A feoffment, either with or without warranty, made by tenant IV. By release in tail is a discontinuance; but, a release or confirmation is not, or confirmation, as they are innocent conveyances, and transfer no estate by with warranty. wrong; but, where a warranty is added to a release, or confirmation, to a disseisor, &c. it will work a discontinuance if it descend upon him who has the right. (b) The operation of a warranty in this case is thus explained by Chief Baron Gilbert. "A release with warranty works a discontinuance, for, at common law, the warranty was a voluntary covenant of the force of a feudal contract, and repelling the warrantor from claiming the land, and obliging him to defend it. And, though the statute takes away the force of such covenants, that they shall not bar the issue, yet the issue must claim in the manner the statute prescribes, viz. by action, and, therefore, it works a discontinuance, since in such case the issue cannot recontinue but by ac tion only." (c) If the issue were allowed to enter without bringing an action, the warranty could not be pleaded, and the effect of it by way of voucher would be lost; in order, therefore, that in case assets in fee-simple descend, the releasee may plead the same, and bar the demandant, it has been held, that a release, &c. with warranty, works a discontinuance, and puts the issue in tail to his action. (d)

In case of a release with warranty, it is not requisite that the releasor should ever have been actually in possession by force of the entail, as in other cases of discontinuance (e); and if there be tenant for life, the remainder over in tail, and the tenant for life dies, and a stranger intrudes, during whose possession he in remainder releases with warranty in fee, and has issue, and dies, the issue cannot enter, for, by the opinion of all the justices, this release with warranty is a discontinuance, and countervails an entry and feoffment. (ƒ)

But the warranty must descend upon the person claiming the land (g), for the warranty itself is not any discontinuance, unless the warranty and right descend together to the same issue (h), as if one having a son, marries a second wife, and land is given to

(Gilb. Ten. 124.

(6) Hawk. Co. Litt. 425, 7th edit.

Brown's Case, S Rep. 51, a.

(c) Gilb. Ten. 120.

(4) Co. Litt. 328, b.

(e) Co. Litt. 339, a.

(ƒ) Br. Ab. Discont. de pos. 21.
(g) Gilb. Ten. 120.

(h) Saul v. Clerk, Latch, 65.

Of formedon. the husband in special tail, and he has issue by his second wife, and is disseised, and releases with warranty, and dies, yet the entail is not discontinued, because the warranty descends to the heir at common law. (a)

Discontinuance.

Discontinuance

statute in cer

tain cases.

There are some cases in which the effect of a discontinuance taken away by has been taken away by statute. By statute 11 H. 7, c. 20, if any woman who has an estate in tail jointly with her husband, or only to herself, or to her use, of any manors, lands, &c. of the inheritance or purchase of her husband, or given to the husband and wife in tail by any of the ancestors of the husband, or by seised to the use of the husband or his ancesany other person tors, shall, being sole, or with any after taken husband, discontinue, such discontinuance shall be utterly void, and every person to whom the interest, &c. after the decease of the woman, of the manors, lands, &c. discontinued, should appertain, may enter as if no such discontinuance had been made. And, if such (after taken) husband and wife make such discontinuance, the person to whom the manors, lands, &c. should belong, after the death of the woman, may enjoy, and enter according to such title and interest as he should have had in the same, if the woman had been dead, and no discontinuance had, as against the husband during his life, if the discontinuance be had by the woman and husband during the coverture. Provided that the woman after the death of the husband may re-enter, &c., and enjoy the lands, &c. according to her first estate; but, if the woman, at the time of such discontinuance, be sole, she shall be barred of her title and interest from thenceforth, and the person to whom the title, &c. should belong after the death of the woman, may immediately enter. Provided also, that the act shall not extend to any recovery or discontinuance to be had where the heirs next inheritable to the woman, or where he who has the next estate of inheritance after the death of the woman, be assenting to the recovery, where the assent is of record or enrolled. (b)

And by the statute 32 H. 8, c. 28, (c) it is enacted, that no fine, feoffment, or other act made, suffered, or done by the husband only, of any manors, lands, tenements, or hereditaments, being the

(a) Litt. s. 602, 603. Hawk. Co. Litt.

426.

(b) For the decisions on this statute, see 2 Danvers Ab. 579. Bacon's Ab. Discont. D. Com. Dig. Discontin. (A. 5,) &c.

(c) "This statute," says Mr. Preston, (Shep. Touch. 28, b.) "does not prevent the discontinuing or divesting. It merely gives the remedy by entry instead of the remedy by action."

In general.

inheritance or freehold of his wife during the coverture between Of formedon. them, shall in anywise be or make any discontinuance thereof, or be prejudicial or hurtful to the said wife or her heirs, or to such as shall have right, title, or interest to the same, by the death of such wife or wives; but, that the same wife and her heirs, and such other to whom such right shall appertain after her decease, shall and may then lawfully enter into all such manors, &c. according to their rights, &c. any such fine, feoffment, or other act to the contrary notwithstanding, fines levied by the husband and wife (whereunto the said wife is party and privy) only excepted. (a)

The writ of formedon is of three kinds, formedon in the de- Of the writ of scender, in the remainder, and in the reverter. It is in the na- formedon in ture of a writ of right (6), and is the highest action which tenant general. in tail can have, for he cannot have a writ of right proper, which is confined to such as claim in fee-simple.

The writ of formedon lies generally for the recovery of any lands or tenements (c), or for a profit a prender in lands or tenements, or issuing out of lands or tenements, as if a rent of 201. be granted in tail or in frankmarriage, issuing out of lands or tenements, and the donee aliens the same, his heir may have a writ of formedon in the descender for the recovery of it. (d) And so if the moiety of the profits of a mill be granted in tail. (e) So a writ of formedon will lie of an office, as of the serjeanty of the cathedral church of Lincoln. (f) But formedon will not lie for common, which was formerly recoverable by a quod permittat, in the nature of a formedon (g), a form of action, now superseded by the action on the case. A formedon lies of a copyhold, by protestation, in the nature of a writ of formedon at common law, for, though formedon in the descender is only given by statute, it shall yet be intended to have been a custom in the manor time out of mind. (h) The demandant must

(a) On this statute, see Co. Litt. 326, a. Baker v. Willis, Cro. Car. 477. GreDely's Case, 8 Rep. 72. Hawtrey's Case, Dyer, 191, b. Beaumont's Case, 9 Rep. 140, a. King v. Edwards, Cro. Car. 320.

(b) Finch's Law, 267. 3 Bl. Com. 192. Br. Ab, Formedon, 48, 77. Droit de Recto, 33, but see Formedon, 31. (c) F. N. B. 212.

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