27. 17. Thus if a tenant in tail covenants to stand 2 Ld. Ravn).. seised to the use of the covenantee for life, remainder 782. 7 Mod. to I. S. in fee, or to the use of I. S. for life, remainder to I. N. in fee; the remainder is good; till avoided by the entry of the issue in tail, although the tenant. in tail dies before the remainder takes effect; because the estate for life takes effect immediately, and the remainder might by possibility have taken effect in the life of the tenant in tail. 18. So if tenant in tail releases to I. S. in fee, to Idem. the use of himself for life, remainder to I. N. in fee, after his death; this remainder is good, though it is to commence after the death of the tenant in tail; because it arises out of the estate of the releasee; Doe, v. Rivers, which estate would have been good, till avoided by Tit. 5. c. 2. the entry of the issue in tail. 19. The issue in tail is not bound, either at law or in The issue not equity, to complete any contract or agreement made Ancestor's bound by his by his ancestor, respecting the estate tail, because Contracts. the issue claims, per formam doni, from the person by 3 Rep. 41 b. whom the estate tail was originally granted, and not 271. from his ancestors. 1 P. Wms. 2 Ves. 634. 1 Cha. Ca. 294. 20. It was formerly, held that a covenant by a Hill v. Carr, tenant in tail to levy a fine upon a valuable consideration, and a decree that he should do so, would bind the issue in tail. This doctrine was soon altered, Hob. 203. and it was determined that a court of equity cannot 2 Vent. 350. dispense with any of thsoe forms which the law re quires to bar estates tail. v. Worsley, v. Keymis, . 21. A tenant in tail made a mortgage, without Jenkins levying a fine, with a covenant for further assurance, 1 Lev. 237. and died. Lord Keeper Bridgeman would not compel the issue to make the assurance good; though the father might have done it by fine or recovery. H 3 Herbert v. 2 Ab. Eq. 28. Sangon v. Gilb. R. 164. 2 Vern. 306. 22. A tenant in tail entered into articles, concerning his lands, for payment of his debts; but died without doing any act to destroy the estate tail. It was decreed that this agreement could not be executed against the heir in tail. 23. A decree was obtained against a tenant in tail, who had contracted for the sale of his estate, and received a great part of the consideration, to compel him to levy a fine, and suffer a recovery. The tenant 1 P. Wms. in tail stood out all process against him, to a contempt, and died. A bill was then brought against his issue to revive the decree against him, which was dismissed. 720. Wharton v. Wharton, 2 Vern. 3. 24. A tenant in tail covenanted to settle a jointure on his wife. In order to perform his covenant, he acknowledged a fine, but died before it was perfected. The Court of Chancery refused to supply this defect against his issue. 25. Where a person is prevented from barring an estate tail by force and management, the Court of Chancery will compel the parties to act as if the reTit. 36. c. 11. Covery had been suffered. Luttrell v. Unless he confirms them. Ross v. Ross, 26. If the issue in tail does any act towards carrying the contract or agreement of his ancestor into execution, it will then become binding on him; and he will be compelled, in equity, to perform it. 27. Francis Ross having issue James his legitimate son, and John a bastard, devised lands to John in tail. James having copyhold lands by descent, James and John agreed to exchange their estates. The agreement being executed, James obtained a decree against John to levy a fine of his estate tail, and by that means to settle it on James. John died in contempt for not obeying the decree: his issue entered on the copyhold estate, and continued in the It was said by the court, that if a tenant in tail agrees to convey, he is bound by that agrecment: if he dies without performing it, his issue is not bound to perform it. But if the issue accepts of the agreement, and enters, as in this case, on the lands, it then becomes his own agreement, and will bind him. So decreed against the defendant. Recog. pl. 7. 28. The issue in tail is not subject to any of the Nor subject debts or incumbrances of his ancestor; therefore if a to his Debts. Bro. Ab. Tit.. tenant in tail acknowledges a statute or recognizance, upon which the land entailed is extended, the issue in tail may enter, upon the death of the ancestor, and oust the creditor. 29. Estates tail were not originally liable, in the Except hands of the issue, to the payment of debts due by But it is enacted by the the ancestor to the crown. Crown Debts. 30. Upon the construction of this act, it was re- Anderson's solved by the barons of the Exchequer in 41 Eliz. Case, 7 Rep. 21. ante, c. 1. § 30. on conference had with Popham, Ch. J. and divers other justices, 1. That before this statute, if tenant in tail became indebted to the king by judgement, recognizance, obligation, or otherwise, and died, the king should not extend the land in the seisin of the issue in tail; for the king was bound by the statute De Donis; as it was adjudged in Lord Berkeley's case. 2. That if the tenant in tail becomes indebted to the Tit. 1. § 67. king, by the receipt of the king's money, or otherwise, unless it be by judgement, recognizance, obligation, or other specialty, and dies; the land in the seisin of the issue in tail shall not be extended for such debt of the king's. For this statute extends only to the said four cases; and all other debts remain at common law. 3. That if tenant in tail becomes indebted to the king by one of the four ways above mentioned in the said act, and dies; and, before any process or extent, the issue in tail, boná fide, aliens the land, it shall not be extended by force of the said act. For, as it appears by the words thereof, it makes the land in the possession or seisin of the heir in tail only, liable against the issue in tail, and not the alienee. For the makers of the act had reason to favour the purchaser, farmer, &c. of the heir in tail, more than the heir himself: because they are strangers to the debts of the tenant in tail, and came to the land bona fide, on good consideration. 4. That a debt originally due to a subject, to which the king becomes entitled by attainder, forfeiture, gift of the party, or any other collateral way, was not within the statute; which only extended to debts originally due to the king, by judgement, recognizance, obli gation, or other specialty. 31. Where a person takes an estate tail, by gift from his ancestor, on good consideration, such estate is not liable to a debt of the ancestor, contracted after the gift was made. 32. Foskew being seised in fee of the manor of S. Foskew's Case, in consideration of his son's marriage, covenanted 2 Leon, 90. to levy a fine of the said manor to the use of himself and his wife for their lives, remainder to the use of his son and his wife, and the heirs of their bodies. A fine was levied accordingly. Foskew afterwards acknowledged a recognizance to Queen Elizabeth, and died indebted to the crown. The manor of S. was extended for the queen's debt. It was argued by Coke, that the manor was not chargeable by the stat. 33 Hen. VIII. For the object of that statute was to make lands entailed liable to the king's debts, where they were not so before, against the issue. But the words "was or shall be indebted" should not be intended after the gift made. That, "shall be," was to be intended of future debts, after the statute: whereas, at the time of the settlement, Foskew was not receiver or other officer to the queen. That this was not within the statute, for the words were, by gift of his ancestors. Here the son had not the manor by gift of his father, but rather by the statute of uses; and so he was in, in the post, not in the per, by his ancestor : for the fine was levied to divers persons, to the uses aforesaid; nor was the gift a mere gratuity, but in consideration of marriage; and the debt accrued not till after the gift. the He admitted that if there had been any fraud in the case, or any purpose in Foskew, when he made conveyance, to become the king's debtor or officer, it would be within the statute, and the gift had been a mere gratuity. Resolved that the lands should be discharged. |