269 a. (494)* Vid. Ascough's case. lib. 9. fol. 135, 136. 20 H. 6. 9. 2 Н. 4. 24. 12 E 4. 2. 26 Н. 6. Avowrie 17. 9 Eliz. *269 b. the tenant maketh a feoffment in fee, the which feoffee doth ever become tenant to the lord (16), if the lord release to the feoffor all his right, &c. this release is altogether void, because the feoffor hath no right in the land, and he is not tenant in right to the lord, but only tenant as to make the avowry, and he shall never compel the lord to avow upon him, for the lord shall avow upon the feoffee if he will. "Very lord and very tenant." This is to be understood of a lord in fee simple, and of a tenant of like es tate. *There be four manner of avowries for rents and services, &c. viz. 1. Super verum tenentem, as in the case here put. 2. Super verum tenentem in formâ prædicta, as where a lease for life, or a gift in til be made the reDier 257. 5 H. 7. 11 mainder in fee. 3. Upon one as pon his tenant by the 7 Ε. 4. 24. 20 E. 3. manor, omitting (very); and this is when the lord hath Avow. 131. 9 Rep. 135 b. 21 H. 8. c. 19.) a particular estate in the seignory, and so shall the donor *upon the donee, or lessor upon the lessee. 4. Sur le matter en la terre as within his fee and seignory. As where the tenant by knight-service maketh a lease for life reserving a rent, and die, his h ir within age, the guardian shall avow upon the lessee, scilicet super materiam prædictam in terris et tenementis prædictis ut infra feodum et dominium suum Now by the statute 47 E. 3. fol, ultimo. 38 H. 6. 23. (Doc. Pla. 53.) 21 H. 8. the very lord may avow, as in lands within his fee and cap. 29. (Post, 345.) seignory, without avowing upon any person in cer tain (1). Here appeareth the diversity between a tenant in tail, and a tenant in fee-simple; for albeit tenant in tail make (66) &c. added in L. and M. and Roh. (1) On the continuance of the entail in the tenant in tail after a feoffment made by him, see the case of Lord Sheffield v. Ratclife, Hob. 334. and see Duncombe v. Wingfield, ibid. 254.-[Butler, Hote 223.] a feoffment in fee, yet the right of the intail remains, and shall descend to the issue in tail (s 2). But when the tenant in fee-simple make a feoffment in fee, no right at all remains of his estate, but the whole is transferred to the feoffee. Also the lord is not compellable in that case to avow upon the feoffor; but if he will, as Littleton here saith, he may avow on the feoffee; but so it is not, as hath been said, in case of tenant in tail. Note a diversity between actions and acts which concern the right, and actions and acts which concern the possession only. For a writ of customs and services lieth not against the feoffor, nor a release to him shall extinguish the seignory. So if a rescous be made, an assise shall not lie against the feofor, and him that made the rescous, because the f offee is tenant (2), and in assise, the surplusage encroached shall be avoided. For these actions and acts concern the right; but of a seisin and an avowry which concern the possession, it is otherwise. And if the lord release to the feoffor, this is good between them, as to the possession and discharge of the arrearages, but the feoffee shall not take benefit of it, for that, as hath been said, it extendeth not to the right. But the feoffor shall plead a release to the feoffee, for thereby the seignory is extinct: as if lessee for life doth waste, and grant over his estate, and the lessor release to the grantee, in an action of waste against the (S2) That when the tenant in tail makes a feoffment the right of the intail remains, and shall descend to the issue; but when a tenant in feesimple makes a feoffment in fee, no right remains in him but the whole, since the stat. Quia emptores, is transferred to the feoffee, see acc. Hob. 252.334. Watk. Gilb. Ten 85. 133.391.-[Ed.] (T 2) If the lord distrained for rent, and a rescous was made, an assise did not lie against the feoffor and the rescuer, because the feoffee is tenant, and the distress was taken, and the violence done to the lord on land in his possession, and an assise for rent is not so merely possessory as an avowry; for if the lord had been seised of more rent than of right was due by incroachment on the tenant, he could not recover in assise more than was due, but he might in an avowry. F. N. B. 10. G. Hawk. Abr. 360.-[Ed.] (Doc. Pla. 301.) (495)* 4 E.3.22. 7 Ε. 3.8. 7 Ε. 4.27. 29 H. 8. tit. Avowrie. Br. 111. lib. 3. fol. 65, 66. Pennant's case. 6. 7 Н. 4. 14. 2 Е. 4. 34 Η. 6. 46. 37 Η. 6. 29 Η. 8. Avowrie. (6 Rep. 58 b.) lessee, he shall plead the release, and yet he hath nothing in the land. And so in waste shall tenant in dower or by the curtesy in the like case, and the vouchee, and the tenant in a præcipe after a feoffment made. And so in a contra formam collationis (U 2). "The which feoffee doth never become tenant." Nota here an excellent point of learning, viz. if there be lord and tenant, and the rent is behind by divers years, and the tenant make a feoffment in fee, if the lord accept the service or rent of the feoffee due in his time, he shall lose the arrearages due in the time of the feoffor; for after such acceptance he shall not avow upon the feoffor, nor upon the feoffee, for the arrearages incurred in the time of the feoffor. But in that case, if the feoffor dieth, albeit the lord accept the rent or service by the hand of the feoffee due in his time, he shall not lose the arrearages, for now the law compelleth him to avow upon the feoffee (w2), and that which the law compelleth him unto, shall not prejudice him. (U2) And the reason is, because, in these cases, the demandant cannot recover, without avoiding his own release. [Ed.] (W 2) In illustration of this doctrine, Lord Ch. B. Gilbert observes, that before the statute of Quia emptores, if a man had aliened, the feud was forfeited, though afterwards that was compounded for fines; and because the tenant had sworn fealty, he could not withdraw himself out of the feudal service during life; but after the death of the feoffor, the lord was empowered to take the feoffee for his tenant, for the lord could not introduce the heir into the feud, contrary to the alienation of the an cestor And after the statute of Quia emptores, the lord could avow upon the feoffor till the arrears were tendered; but both before and after the statute, by acceptance of the feoffee, he became his tenant; for it was a plain consent to the alienation. So in terms for years, if a termor assigus, and the landlord accepts rent from the assignee, he can have no action from the termor, because the rent is a service, which being taken from the assignee, establishes him in the term, and he cannot demand the service but from the tenant of the land; but where there is no such acceptance, if the termor assigns in his life-time, or the executor after his decease, yet an action of debt lies for the rent against the executor; for a term for years being the sinallest estate, is presumed to continue in person, and the contract is supposed to be performed by that person, unless he accept another tenant; and that person has a continuance to perform all contracts as long as there is an executor that represents him, and has assets to perform his contracts. 5 Co. 24. 1 Sid. 266. But & man may have an action of covenant on the covenants in the lease, after the acceptance of the assignee for his tenant; because though the acceptance discharges the tenant from the action of debt, since it discharges *So it is, and for the same reason, if there be lord, mesne, and tenant, and the rent due by the mesne is behind, and after the tenant fore judge the mesne, and the lord receive the services of the mesne which issue out of the tenancy, he shall not be barred of the arrearages which issued out of the mesnalty; and so if the rent be behind, and the tenant dieth, the acceptance of the services by the hand of the heir shall not bar him of the arrearages; for in these cases, albeit the persons be alter.. ed, yet the lord doth accept the services of him which only ought to do them. (496) But as long as the feoffor liveth, the lord shall not be 4 E 3.22. 47 Ε. 3. 4. compelled to avow upon the feoffee, unless he giveth the lord notice, and tender unto him all the arrearages. But now by the statute the lord may avow upon the lands so holden, as in lands within his fee or seignory, without naming of any person certain to be tenant of the same, and without making of any avowry upon any person certain, as hath been said, which hath much altered the common law in the cases above said, for the benefit and safety of the lord. But yet these cases are necessary to be known (for which purpose I have added them), for that the lord may avow still at the common law if he will. 21 Н. 8. сар. 1. LITTLETON. OTHERWISE it is where the very tenant is disseised, as in the case aforesaid: for if the very tenant [Sect. 458. 270a.] who is disseised, hold of the lord by knight-service and dieth (his heir *being within age), the lord shall have and seise the wardship of the heir, and so shall he not have the ward of the feoffor that made the Reason of the diversi. (497)* (Ante, 76 b.) ty between this case and that of a release to very tenant being dis the service by accepting another, yet without legal words and a solemn seised. fenfiment in fee, &c. 'x 2, so there is a great diver sity between these two cases. Of this sufficiert hath been said before. 270 a. 12 H. 4. 13. 363 2-9 b. Littleton (sect. 479) putteth a diversity between reHere a release by way leases which enure by way of extinguishment against all of extingashment shall enure. per-ons, and whereof all persons may take advantage, and releases which in respect of some persons enure by way of extinguishment, and of other persons by way of mitter le droit; or between releases which in deed enure by extinguishment, for that he to whom the release is made cannot have the thing released; and releases which, Laving some quality of such releases, are said to enure by way of extinguishment, but, in troth, do not; for that he to whom the release is made may receive and take the thing released. And Littleton putteth cases where releases do absolutely enure by extinguishment, without exception, having respect to all persor s. And first of the lord and tenant; secondly, of the rent-charge; thirdly, of the common of pasture. First, of the lord and tenant, and the lord release to On release of right of seignory by the lord to the tenant his seignory, *this must, of necessity, enure his tenant, the seignory is extinct as to all per. by way of extinguishment to all men; for the tenant sons. *280 a. On release of rentcharge, common of pasture, &c. to the terre-tenant, the rentcharge, &c. is extinct as to all persons. (2 Kol. Abr. 405.) cannot have service to be taken of himself, nor one man can be both lord and tenant. The second is of a rentcharge; a man cannot have land and a rent issuing out of the same land. Thirdly, a man cannot have land and a common of pasture issuing out of the same land, et sic de cæteris. For in all these cases, and the like, he to whom the release is made cannot have and enjoy the thing that is released. But in the case of the right of the land, the tenant of the land may take and enjoy it for strengthening his estate therein. (X 2) See ante, 76 b. vol. 1. p. 299. and n. (G) there, and Gilb. Ten. 65.-[Ed. |