sband make

revers

ALSO, if there be two disseisors, and the disseisee

LITTLETΟΝ.

releaseth to one of them, he shall hold his companion [Sect. 522. 298a.]

disseisors, it enures to

On confirmation of the out of the land. But if the disseisee confirm the es-estate of one of two tate of the one, without more (16) saying in the deed, both though othersome say that he shall not hold his companion out, wise of a release): but shall hold jointly with him, for that (17) nothing was confirmed but his estate, which was joint, &c.

This is the fourth case, wherein the release and confirmation seem to differ, being made unto one of the disseisors

298 2.

be to hold the land to

him and his heirs.

"Confirmed but his estate, &c." Hereby it appear- Secus if the habendum eth, that if the disseisee confirm the estate of the one disseisor in the lands, to have and to hold the lands or tenements, or the right of the disseisee, to him and his heirs, he shall hold out the other disseisor; and that appeareth by Littleton, first, upon these words (confirm the state of one) without more saying in the *deed, viz. to have and to hold the lands, &c. Secondly, the reason of Littleton in express words is, for that nothing was confirmed but his estate, which was joint (r). Thirdly, the next two sections make it plain where the habendum is added.

Hereby also it appeareth, that a release is more forcible in law than a confirmation.

(16) dire-parlance, L. and M.

and Roh.

(17) nul, added L. and M. and Roh.

#298 b.

(533)*

(T) If a man confirms the estate to one of the disseisors, he only has the estate as he first had it, which was jointly with the other disseisor; but if he confirms the estate of one disseisor in the lands, to have and to hold the lands, or his right, to him and to his heirs, then such disseisor shall hold out his companion; for such habendum explains the manner of his confirmation, viz. that he should not hold the estate merely as it is, but in a manner more beneficial for him, that is, that he should hold the possession, which he has per my et per tout, to him only; for the habendum explains the assent, viz. that he should hold the possession sole, so that the possession in the whole being confirmed to him only, he has the total right to such possession, and therefore may hold out his companion, Gilb. Ten. 77, 78.-[Ed.]

lenements. in te

Соски, 21. 248 2 se Cacarmeno gn; and inerefore it is a groot and mething in every confirmation to have trends to hate and to hold the tenements, &e. in fee, or in fer tots or for term of life, or for term of years, according ea the case 19, is, or the matter lieth.

298 b.

LITTLETON.

"And therefore it is a good and sure thing, &c." This is good counsel, and worthy to be observed.

FOR to the intent of some, if a man letteth land to [Sect. 524. 20 b. another for life, and after confirm his estate which he On conformation of the hath in the same land, to have and to hold his estate estate of tenant for ufe. habendum has state to to him and to his heirs, this confirmation as to ti ham and has hears, has extate is not enlarged:

heirs is void. for his heirs cannot have his estate vide [COKE. 299 a.] section 650.,, which was 20, not but for term of his seous if it be to hold the land token and his life But if he confirm his estate by these words, to

heirs.

(534)*

298 b.

(1 Rol. Abr. 482.) 18 Ε. 3. 40. (Plo. 158 a.)

have the same land to him and to his heirs, this confirmation maketh a fee-simple in this case to him in the land, for that (21) the words to have and to hold, &c. goeth to the land, and not to the estate which he hath, &c.

(U) But in such case the assurance operates as a release, which is the proper mode of conveyance by one joint-tenant to his companion, and not as a confirmation. Fitz. Abr. Confirm, 15. Shep. Touch. 314. Watk. Gilb. Ten. 78. Ante, vol. 1. p. 764. n. (E).-[Ed.]

*299 a.

of the estate for life in the land to have and to hold the said state in the land to him and his heirs, this cannot enlarge his *estate, for his estate being but for life, that estate cannot be extended to his heirs. But in that case if he confirm the state for life in the land in the premises of the deed, and the habendum is of this sort, to have and to hold the land to him and his heirs, this shall enlarge his estate, and create in him a fee simple (w). Wherein is to be noted, (h) that the habendum and (h) Vid. Pl. Com, in the premises do in substance well Throgmorton's case, a and Throg fol. 147 a. Wrottesthat the habendum may enlarge the premises, but not leye's case, 197. (2 Rep. 23.) abridge the same (1).

agree together,

And seeing that in conveyances, limitations of remainders are usual and common assurances, it is dangerous by conceits or nice distinctions to bring them in question, as have in latter time been attempted.

LITTLETΟΝ.

On confirmation to baron and fême lessee

ALSO, if I let certain land to a feme sole for term of her life, who taketh husband, and after I confirm [Sect. <5 299 a.] the estate of the husband and wife, to have and to hold (22, for term of their two lives; in this case the for life for their lives, husband doth not hold jointly with his wife, but hold- is enlarged by way of eth in right of his wife for term of her life. But this remainder for life, if confirmation shall enure to the husband by way of he survive :

remainder for term of his life, if he surviveth his wife.

the husband's estate

(535)*
299 b.

*" By way of remainder &c." Here some question hath been made of this term remainder, without any cause at all, because in law it is in nature of a remainder. For in case of a fine, when a reversion expectant upon Pl. Com. Colthirst s

(22) la terre, added L. and M. and Roh.

case. Doct. & Stud, ca. 21.

(W) For, by these words, "to have and to hold the land to him and his heirs," there appears to be a further intent than merely to confirm the estate, viz. to enlarge it to him and his heirs; and taking the grant strongest against the grantor, it must pass away the fee-simple. Gilb. Ten. 78.-[Ed.]

(1) On the operation of an habendum in a deed, see ante, 21 a. Vin. Abr. Grant, J. K. L. and M.

Elcia, ed a remainder in End that is the tormation an rare aversed to the based for term of b s. 17,17Eje Laserdong the feat have nothing bola abey arce af or are ca cfhawe Eet there should be pizia vermi leted and wise men ever ass 3, ad co reic se, ta state of the bostanis 2001, and lite there by way of crease and enirgement of his este. Adat his case of Lit Sros, the torace by the firerat on gaineth an esate 676 Arte, for fein remades, as Live ton ters yet if the 150605 waste, an action of wastes al. 1-art hande, twit sarding the means rema. benetrero dhir self commitch tre waste, and doth the wrong; andt ere o e shall not exere himself Arhive mmiti z of waste, in respect he himself tath the remainder; to more than if a man least to A. during the life of B. the remainder to him during the life of C.. if he commit waste, an action of waste shall lie aga..st him (y.

299 a. Vid, sert, 57生。 (50.83 %1.) (2 Rol Aor 8.29.)

er.

Here is the fourth case wher in the release and confirmation do agree; and in this case it is to be observed, that the baron hath such an estate in the land in the right of his wife, as he is capable of a confirmation to enlarge

(Y) With respect to the distinction between the cases where an estate for ille is enlarged to an estate in fee, by the release or confirmation of the reversioner, or remainder-man, and those cases where a person being seived of an estate for life, the inheritance is afterwards conveyed or devised to his right heirs, by a subsequent deed or will, in which case the estate of the ancestor is not enlarged by the subsequent conveyance of devise to his right heirs: see arte. p. 145. n. (P). Fearn. Cont. Rem.

his heirs, it enures to

his estate (1); *and therefore if the confirmation had (526)* been made of his estate to him alone, to have and to hold So if made to him and the land to him and to his heirs, this had been good to him in fee, after her have conveyed the fee-simple to him after the decease of (Ante, 273 b.) his wife: for if in this case a release be made to the hus- 16 H. 6. tit. Release 45. 22 E. 3. tit. Re

decease.

(1) It is necessary to distinguish between the cases mentioned by Little- lease. Statham. ton and Sir Edward Coke, in this and the succeeding chapter, where an estate for life is enlarged to a fee, by the release, or confirmation of the reversioner, or remainder-man, and those cases where a person being seised of an estate for life, the inheritance is afterwards conveyed or devised to his right heirs, by a subsequent deed, or will. It appears by the case of Moore v. Parker, 1 Lord Kaym. 3. 4 Mod. 316. Skinn. 558. and Fonnereau v. Fonnereau. Doug Rep. 1 vol. 470. that the estate of the ancestor is not affected by the subsequent conveyance or devise to his right heirs. For though it is a rule. that where the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift, or conveyance. an estate is limited, either mediately or immediately to his heirs in fee, or in tail, "the heirs," in such cases, are words of limitation of the estate, and not words of purchase; yet this applies only to those cases where both the limitations are by the same instrument. In some cases the freehold of the ancestor has resulted to him by implication; but still the deed from which that implication resulted was the deed in which the limitation to his heirs was expressed; so that the implied estate of freehold, and expressed estate of inheritance, arose at the same time, and under the same deed, which brings it within, the general rule. But suppose an estate is limited to A for life; remainder to such uses as B shall appoint. and afterwards B. in the life-time of A. appoints the estate to A's right heirs; it is difficult to say, whether in that case, the estates will unite or not. This case has sometimes occurred in practice, but has not yet been the subject of any judicial determination. To prove the union of the two estates, it may be contended, that the deed by which the power is executed, must be considered as part of the deed by which the power is given; and the use limited by the execution of the power derives its effeet and is fed by the seisin of the releasees or feoffees of the deed containing the power; that the uses limited in the original deed to take effect in default of an execution of the power, are su ject to that power; that the uses I mited under, or by virtue of the power, precede, and take place of them, in the same manner as if in the original deed, not the power, but the use under the power, had been inserted; and that though the uses vest at different times, yet they may be considered as virtually created at the same time. On these grounds, the proposed case may be contended to resemble the case put, 378. b. that if lands be given to two during their joint lives, with the immediate remainder to the right heirs of him who shall die first, there, both the estates are created at the same time, but the inheritance does not vest till a subsequent period: yet Sir Edward Coke expressly says, that the heir, in that case, takes by descent. Between the cases, however, there is this difference, and it may be thought important. that in the case put by Lord Coke, the limitation of the inheritance was confined to the heirs of the preceding tenant for life, so that there never was an instant when it was not certain that the remainder in fee would, in the contemplation of law, attach in one or other of them so far as to make his heir take by descent; and thus each tenant for life had a contingent remainder or possibility in fee. But in the case proposed in this annotation, no such contingent remainder or possibility existed in A. the tenant for life. See. 271. b. note 1. VII. 2.-Since the publication of this note in the former editions of this work, the subject has received a masterly investigation by Mr Fearne. See his Essay on Confingent Remainders, 6th Edit. p. 74.-[Butler, Note 261.]