308 a. 47. 15 Ε. 4. 8 b. Here the diversity is apparent, between a rent newly (2 Rol. 415.) 21 E-3- created and a rent in esse (D1): which needeth no exJl. Com. 35 8 H. 4. plication. Only this is to be observed, that Littleton in19. (Ante, 148 a. 317 a.) (540)* LITTLETΟΝ. tendeth his deed of confirmation not to contain any clause of distress; for otherwise, as to the confirmation the deed is void, but the clause of distress doth amount to a new grant, as in the Chapter of Rents hath been said. *BUT if a man be seised in fee of rent-service or [Sect 549.308 a.] rent-charge, and he grant the rent to another for life, see is in the case of a rent-service or rentcharge ru esse. 231) *-08 h. and the tenant attorneth, and after he confirmeth the estate of the grantee in fee-tail, or in fee-simple, this (Arte, 366 a. Finch. confirmation is good, as to enlarge his estate according to the words of the confirmation, for that he which confirmed (28) at the time of the confirmation had a reversion of the rent. 308 b. LITTLETON. Here is the eighth case, wherein the release and confirmation doth agree: and it is here to be observed, that to the grant of the estate for life, Littleton doth put an attoroment, because it is requisite (E 1); but to the confirmation to the grantee of the rent to enlarge his estate, there is none necessary, and therefore he putteth none; but of this more is said in the Chapter of Attornment, section 556, 557 (F 1). BUT in the case aforesaid, where a man grants a [Sect. 550 305b.]rent-charge to another for term of life, if he will that the grantee should have an estate in tail, or in fee, it behoveth that the deed of grant of the rent-charge for term of life be surrendered or cancelled, and then to make a new deed of the like rent-charge, to have and perceive to the grantee in tail or in fee, &c. Ex paucis (25) plurima concipit ingenium. (28) l'estate, added L. and M. (29) plurima concipit ingeniumdictis, &c. L. and M. (D 1) As to the difference between an interest newly created, and an interest in esse, see ante, p. 248. n. (C).-[Ed.] (F1) That is, at common law, before the 4 & 5 Ann. c. 16.-[Ed.] (FI) Ante, p. 367-37. [Ed.] 908 b. 66. Plowd. 237 a. (541)* " Surrendered or cancelled." Note, by cancellation of the deed the rent which lieth only in grant ceaseth Vid. sect. 636. (Cro. Car. 399. Ante, (as here it appeareth) as well as by the surrender (G 1). 148 a. 225 b. 10 Rep. And the reason *wherefore (if the grantor make a Post, 338. 1 Vent. new grant of the rent, and not enlarge it by way 297.) of confirmation, as Littleton must be intended) the deed should be surrendered or cancelled, is, lest the grantor should be doubly charged, viz. with the old grant for life, and with the new grant in fee; or, as hath been said, the grantor may grant to the grantee for life and his heirs, that he and his heirs shall distrain for the rent, &c. and this shall amount to a new grant, and yet amount to no double charge, whereof you may see before in the Chapter of Rents. 5. Confirmation of a ALSO, if my disseisor granteth to one a rent-'LITTLETON. charge out of the land whereof he disseised me, and 1[Sect 527.300 a.] rehearsing the said grant confirm the same grant, rent-charge not avoidand all that which is comprised within the same grant, ed, though the estate out of which it issued and after I enter upon the disseisor; quære, in this be afterwards defeated, case, if the land be discharged of the rent or no (30). by the entry confirmor; This is the fifth case, wherein the release and confirmation do differ; for a release to the grantee in this (30) &c. added in L, and M. and Roh. (G 1) Since the Statute of Frauds, 29 Car. 2 c. 3. s. 3. the mere cancellation of an instrument will not defeat the estate created by it, See Mac Gennis v. M-Cullough, Gilb. Eq. Rep. 235. Roe v. Archbishop of York, 6 East. 36. Et vid. Leachv. Leach, 2 Ch. Rep. 52. And even if the m strument would from its nature be revocable by cancellation, yet if the cancellation be made through a mistake in fact, or even, it is said, through a mistake in law the mistake will annul the cancellation. Perrott v. Perroll, 11 East 423. Sugd. Pow. 393. Cancellation, however. destroys a will executed under a power. Id. 321. It may be further observel, that if an instrument be altered by razure or otherwise in a material part by the person for whose benefit it was intended, the deed hecomes absolutely void. Whelpdale's case, 5 Co. 119 a But though it was formerix held, that a razure by a stranger would have the same operation (Pigolt's case, 11 Co. 27 a.), it is now settled that an alteration by a stranger, without the privity or consent of the party interested, will not avoid an instrument, no more than if it had been obliterated or cancelled by mistake. Henfree v. Bromley, 6 East, 310. French v. Patton, 9 East. 351. See further as to razure and alteration of deeds, Vin. Abr. Faits, T. U. U. 2. X. X. 2. 1 Wood's Conv. 808,809. and the books cited ante, p. 232, 233. n. (13).-[Ed.] 4 of the 300 a. (m) 11 H. 7. 28. Lib. 1. fol. 147, 148, Anne Mayow's case. (Post, sect. 529.) case (m) were void. It is holden by some authority since Littleton wrote, that the disseisee after his re-entry shall not avoid the rent-charge against his own confirmation: and there a general rule is taken, that such a thing as I may defeat by my entry, I may make good by my con firmation. If the feoffee upon condition grant a rent-charge in fee, and the feoffor confirmeth it, and after the condition is broken, and the feoffor enter, he shall not avoid the or by his recovery in rent-charge. And so it is, if the heir of the disseisor grant a rent-charge, and the disseisee confirmeth it, and after recover the land, he shall not avoid the rent (H1); and yet in neither of these cases his entry was congeable at the time of his confirmation. an action. (542)* LITTLETΟΝ. ALSO, if there be lord and tenant, (32) albeit the [Sect. 535.304 b.] lord confirm the estate which the tenant hath in the 6. Confirmation does not give distinct rights, tenements, yet the seignory remaineth entire to the On confirmation by the lord of the estate of his tenant, yet the seignory remains. (Sid. 175, 176.) (Doc. Pla. 70. 118.136.138. 254.) (11 Rep. 52 а.) *305 a. *lord as it was before. (32) mesque-et, L. and M. and Roh. (H1) The confirmation, in the above instances, is good, though the estate is gone, out of which the grant confirmed was derived; for since the disseisee has consented to the estate which has a being from the disseisor or disseisor's heir, he cannot afterwards destroy it. Gilb. Ten. 79. So if the mortgagee makes a lease for years, and the mortgagor confirins it, and afterwards the condition is performed, the lease shall not be avoided. Englefield's case, 7 Co. 14 a. So tenant in tail makes a lease for life, now he hath gained a new fee by wrong, and afterwards he grants a rent-charge, or makes a lease for years, and afterwards tenant for life dies, he shall not avoid his charge or lease, although he be in of another estate, because he had a defeasible possession and ancient right, the which, if they be in several hands, should be good, as the lease of one and the confirmation of the other; and being in one hand shall be as much in judgment of law. Ibid Et vid Moor, 325. Poph 50. 1 Co. 147 b. Bro. Condition 249. 2 Rol. Rep. 320. Post, 343 a.. Upon the principle above-mentioned, if lessee for life grants a rent in fee, and the lessor confirms it, the rent remains, though the estate for life be determined. Supra, sect. 529. p. 527. 1 Rol. Abr. 483. So if lessee for life upon condition grants a rent, which the lessor confirms, and afterwards enters for the condition broken, yet the rent remains. Supra, 300 a p. 541. ut if the person who confirmed had only a particular estate, his confirmation determines with his estate: as if a patron, being only tenant for the life of B., confirmed a lease of the parson, the confirmation determined when B. died. 2 Rol. Abr. 9.-[Ed.] IN the same manner it is, if a man hath a rent- LITTLETON. charge out of certain land, and he confirm the es- [Sect.536.30 a.] So in the case of a contate whith the tenant hath in the land, yet the rent-firmation of the estate charge remaineth to the confirmor. of the tenant, by the grantee of a rentcharge, or common, yet the rent-charge, or common, remains. IN the same manner it is, if a man hath common LITTLETΟΝ. of pasture in (33) other land, if he confirm the estate [Sect. 537.305 a.] of the tenant of the land, nothing shall pass from him of his common; but notwithstanding this, the common shall remain to him, as it was before. 305 a. case of a release. (543)* Here is the sixth case, wherein the release and confirmation do differ; for by the release, the seignory, rent. Diversity herein in the charge, or common, are extinct (11). And so these three sections be *evident, and need no explication, saving that some do gather upon these two last sections, and the next ensuing, that a man cannot abridge a rentcharge or common of pasture by a confirmation, as he may do a rent-service in respect of the privity hetween the lord and tenant, so as (say they) a tenure may be abridged by a confirmation, but not a rent-charge or common: and therefore Littleton beginneth the next section with an adverb adversative, viz. (but), &c. But a man may release part of his rent-charge, or common &с. (к 1). If the disseisee and a stranger disseise the heir of the (33) en-ou, L. and M. and Roh. (I 1) The lord by his confirmation strengthens or establishes the estate which the tenant already had, but he does not pass his right to the seignory, because the confirmation or assent to that estate cannot be interpreted to pass that other distinct right which is in him, since the assent to one estate is no reason to conclude that he has parted with the other; but if he had released all his right, he had thereby extinguished his seignory, because by such remitting his right, he could not have demanded any thing. Gilb. Ten. 79. 80.-[Ed.] (K1) So a confirmation does not give any collateral qualities: and therefore, if an husband alone levies a fine, where husband and wife are seised in special tail, remainder to the husband in fee, and the conusee confirms the estate of the wife; this does not make her estate descendible to the issue. who are barred by the fine. 9 Co. 142. 3 Com. Dig. Confirmation (D. 2.)-[Ed.] 298 b. 7. Confirmation does not extinguish a right in suspense. 305 b. 14 H. 4. 2. (544)* (Ante, 76 a.) pended to as theer се свеor re-ecret, ue 12 fees rev.ved 2te tre of age, and an enger Lause the Smart of the and, a tre grantee.cc: Era este f ваготрогоn, the tenant of be and re-enter, the rests revised: for the irration extenced not to the rest suspended; otherwise it is of a resease in 5000 cames. BUT if there be lord and tenant, which teneat holdeth of his lord by the service of Fesity and 20 shillings rent, if the lord by his deed confirm the es tate of the tenant, to hold by 12 pence, or by a penny, or by a half-penny: in this case the tenant is dir charzed of all the other services, and shall render no thing to the lord, but that which is comprised in the same confirmation. "And shall render nothing to the lord, but that which Brien, 6.57.177. is comprised &c." Which words are thus to be urder46L421 47, 48, 18 Ε. 3. 20.50 A 6. stood that the tenant shall not render any more rent or annual service to the lord than is contained in the deed; but other things notwithstanding the said confirmation the tenant shall yiell to the lord, as relief, aide pur file marier, and aide pur faire fitz chivaler, because these are incidents to the tenure "that remain, and shall not be discharged without special words, by the general words of all other actions, services, and demands. And so if a man hold of me by knight-service, rent, suit, &c. and I release to him all my right in the seignory, excepting the tenure by knight service, or confirm his estate to hold of me by keight-service only for all manner of services, exactions, and demands; yet shall the lord have ward, marriage, relief, aide por file marier, et pur faire filz chivaler, for these be incidents to the tenure that remain. But it is holden, that if a man make a gut in tail by deed, reserving two shillings rent a luy et ses heires pro omnibus et omnimodis servitiis, exactionibus secularibus, et cunctis demandis, if the donee die his heir |