All lands in

England were the Conquer

and church

lands. 2. The lands of the

sea belongeth to the king.

But

filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated or's, and appro- unto him, except religious and church-lands, and the priated to him lands in Kent, which by composition were left to the former upon the con- owners, as the Conqueror found them, so that no man but quest of England, and held the bishopricks, churches, and the men of Kent, can at this of him, except day make any greater title than from the conquest to any 1. Religious lands in England; and lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth to the king, men of Kent. and not to him that hath the lands next adjoining, which Land left by the was the ancient sea banks. This is to be understood of the inheritance of lands; viz. that the inheritance cannot be gained by the first entry. But an estate for another man's life by out-laws may, at this day, be gotten by entry. As a man called A. having land conveyed unto him for the life of B. dieth without making any estate of it there, whosoever first entereth into the land after the decease of A. getteth the property in the land for time of the continuance of the estate which was granted to A. for the life of B. which B. yet liveth, and therefore the said land cannot revert till B. die. And to the heir of A. it cannot go, for that it is not any state of inheritance, but only an estate for another man's life; which is not descendable to the heir, except he be specially named in the grant: viz. to him and his heirs. As for the executors of A. they cannot have it, for it is not an estate testamentary, that it should go to the executors as goods and chattels should, so as in truth no man can entitle himself unto those lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall hold it during the life of B. but must pay the rent, perform the conditions, and do no waste. And he may by deed assign it to whom he please in his life time. But if he die before he assign it over, then it shall go again to whomsoever first entereth and holdeth. so all the life of B. so often as it shall happen.

Occupancy.

And

Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a

disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir.

And if such person abator, or disseisor (so as the disseisor hath quiet possession five years next after the disseisin) do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right till he recover it by fit action real at the common law. And if it be not sued for at the common law within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues.

scent.

Property of lands by descent is, where a man hath lands Property of of inheritance, and dieth, not disposing of them, but leav- lands by deing it to go (as the law casteth it) upon the heir. This is called a descent of law, and upon whom the descent is to light, is the question. For which purpose the law of inheritance preferreth the first child before all others, and amongst children the male before the female, and amongst males the first born. If there be no children, then the brother; if no brothers, then sisters; if neither brothers nor sisters, then uncles; and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguinity, with these three rules of diversities. 1. That the eldest of descent, male shall solely inherit; but if it come to females, then three rules. they, being all in an equal degree of nearness, shall inherit altogether, and are called parceners, and all they make but one heir to the ancestor. 2. That no brother nor sister of the half-blood shall inherit to his brother or sister, but as child to his parents, as for example: If a man have two wives, and by either wife a son, the eldest son overliving sister, but only his father is to be preferred to the inheritance of the father, as a child to his being fee-simple; but if he entereth and dieth without a parents. child, the brother shall not be his heir, because he is of the half-blood to him, but the uncle of the eldest brother or sister of the whole blood; yet if the eldest brother had died, or had not entered in the life of the father, either by such entry or conveyance, then the youngest brother should

a

Brother or sister

of

the half blood shall not inherit to his brother or

Descent.

inherit the land that the father had, although it were a child by the second wife, before any daughter by the first. The third rule about descents. That land purchased so by the party himself that dieth is to be inherited; first, by the heirs of the father's side; then, if he have none of that part, by the heirs of the mother's side. But lands descended to him from his father or mother are to go to that side only from which they came, and not to the other side. Those rules of descent mentioned before are to be understood of fee-simples, and not of entailed lands, and those rules are restrained by some particular customs of some Customs of cer- particular places; as, namely, the custom of Kent, that tain places. every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, and the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English.

And there is another note to be observed in fee-simple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or burgh English, is chargeable so far forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth ; and these acts are collateral encumbrances, and the reason of this charge is, qui sentit commodum, sentire debet et inEvery heir hav- commodum sive onus. As for example, if a man bind himing land is self and his heirs in an obligation, or do covenant by writing bound by the for him and his heirs, or do grant an annuity for him and binding acts of his anceshis heirs, or do make a warranty of land, binding him and tors if he be his heirs to warranty, in all these cases the law chargeth named. the heir, after the death of the ancestor, with this obligation, covenant, annuity, and warranty, yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant, grant, and warrant for himself and his heirs, otherwise the heir is not to be touched. Secondly, that some action must be brought against the heir whilst the land or other inheritance resteth in him unaliened away: for if the ancestor die, and the heir, before an action be brought against him upon those bonds, covenants, or warranties, do alien away the land, then the heir is clean discharged of the burden, except the land was by fraud conveyed away of purpose to prevent the suit intended against him. Thirdly, that no heir is further to be charged than the value of the land descended unto him from the

Dyer, 114.
Plowd.

Dyer, 149.
Plowd.

same ancestor that made the instrument of charge, and that land also not to be sold outright for the debt, but to Day & Pepp's be kept in extent, and at a yearly value, until the debt or case. damage be run out. Nevertheless if an heir that is sued. upon such a debt of his ancestor do not deal clearly with the court when he is sued, that is, if he come not in immediately, and by way of confession set down the true quantity of his inheritance descended, and so submit himself therefore, as the law requireth, then that heir that otherwise demeaneth himself shall be charged of his own lands or Heir charged goods, and of his money, for this deed of his ancestor. As for his false for example; if a man bind himself and his heirs in an obligation of one hundred pounds, and dieth, leaving but ten acres of land to his heir, if his heir be sued upon the bond, and cometh in, and denieth that he hath any lands by descent, and it is found against him by the verdict that he hath ten acres, this heir shall now be charged by his false plea of his own lands, goods, and body, to pay the hundred pounds, although the ten acres be not worth ten pounds.

plea.

cheat.

Property of lands by escheat is where the owner died Property of seised of the lands in possession without child or other lands by esheir, thereby the land, for lack of other heir, is said to escheat to the lord of whom it is holden. This lack of heir Two causes of happeneth principally in two cases: first, where the lands' escheat. owner is a bastard. Secondly, where he is attainted of felony or treason. For neither can a bastard have any heir, treason, felony. except it be his own child, nor a man attainted of treason, although it be his own child.

1. Bastardy.
2. Attainder of

titleth the king,

Upon attainder of treason the king is to have the land, Attainder of although he be not the lord of whom it is held, because it treason enis a royal escheat. But for felony it is not so, for there though lands the king is not to have the escheat, except the land be be not holden holden of him and yet, where the land is not holden of of him, otherhim, the king is to have the land for a year and a day next der of felony, ensuing the judgment of the attainder, with a liberty to &c. for there commit all manner of waste all that year in houses, gardens, the king shall ponds, lands, and woods.

wise in attain

have but annum

diem et vestum.

The tenure. 2.

In these escheats two things are especially to be observed; In escheat two the one is the tenure of the lands, because it directeth the things are to be person to whom the escheat belongeth, viz. the lord of the observed. 1. manor of whom the land is holden. 2. The manner of The manner of such attainder which draweth with it the escheat. Con- the attainder. cerning the tenures of lands, it is to be understood, that All lands are all lands are holden of the crown, either mediately or im- crown immedi

holden of the

ately or medi- mediately, and that the escheat appertaineth to the immeately by diate lord, and not to the mediate. The reason why all mesne lords, land is holden of the crown immediately, or by mesne lords, the reason. Concerning the is this.

TheConqueror,

by right of con

lands of the

tenure of lands. The Conqueror got, by right of conquest, all the land of the realm into his own hands, in demesne, taking from quest, got all the every man all estate, tenure, property, and liberty of the same (except religious and church lands, and the land in hands, and as he Kent) and still as he gave any of it out of his own hand, he gave it, he still reserved some retribution of rents, or services, or both, to reserved rents him and to his heirs, which reservation is that which is called the tenure of land.

realm into his

and services.

Knight's service in capite

first instituted.

The reserva

tions in knight's

was four.

and female.

2. Horse for

In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror.

1. Seeing his people to be part Normans, and part Saxons, service tenure the Normans he brought with him, the Saxons he found here, he bent himself to conjoin them by marriages in amity, 1. Marriage of the wards, male and for that purpose ordains, that if those of his nobles, knights, and gentlemen to whom he gave great rewards of lands should die, leaving their heir within age, a male 3. Homage and within twenty-one, and a female within fourteen years, and unmarried, then the king should have the bestowing of such heirs in marriage, in such a family,* and to such The policy of sons as he should think meet; which interest of marriage the Conqueror went still employed, and doth at this day in every tenure in the reserva- called knight's service.

service.

fealty.
4. Primer

seisin.

tion of services

per

constituted in The second was to the end that his people should still four particulars, be conserved in warlike exercises, and able for his defence. was to have the When therefore he gave any good portion of lands, that marriage of his wards both might make the party of abilities or strength, he withal male and fe- reserved this service: that that party and his heirs having male. such lands, should keep a horse of service continually, and Reservation that his tenant serve upon him himself when the king went to wars, or a else, having impediment to excuse his own person, should horse of service, find another to serve in his place; which service of horse and serve upon and man is a part of that tenure called knight's service at when the king this day.

him himself,

went to wars,

which is a part

of that service

called knight's

service.

But if the tenant himself be an infant, the king is to hold this land himself until he come to full age, finding him meat, drink, apparel, and other necessaries, and finding a horse and a man with the overplus, to serve in the wars as the tenant himself should do if he were at full age.

But if this inheritance descend upon a woman, that

* Interest of marriage goeth employed in every tenure by knight's service.