[172 a] and to the other as much; yet it was judged an entire rent. And 29 E. 3. 39, it is holden, that if I grant a rent of twenty shillings out of two manors, sc. ten shillings out of one, and as much out of another, it is but one rent. So are Knight's case, Co. lib. 5. 55, and Winter's case, 14 Eliz. Dyer 308, upon a difference where the rents are reserved severally at the first, and where they are at the first entire, and taken by a viz. Cr. Car. 154. Mo. 64. Yel. 177. Co. L. 217. b. 1 Saund. 170. A So 18 El. Dyer 350. An obligation of two hundred pounds to two, solvend. the one hundred to the one, and the other to the other; the book leaves a quære; but it is clear, a void solvendum. So Hill and Grange's case. lease made in April, for example, rendering a yearly rent (that is to say) at our Lady-day, and Michaelmas; the yearly payment cannot be diminished. Osborn's case, Co. lib. 10. 13. An anglice, (which is but a viz. or that is to say,) shall never exceed the Latin. But now I grant on the other side, that a viz. may work a restriction where the former words were not express and special, but so indifferent as they may receive such a restriction without apparent injury; though those former words, by construction of law, would have had a larger sense, if the viz. had not been; and therefore see 7 E. 3. 9. Mortimer's case. One granted ten pounds of rent (note, not a rent which must (as I have said) be understood one rent of ten pounds) in his manor of D. to receive by the hands of one tenant so much, and so from one tenant to another, till he made up ten pounds, saving his signiory. And the opinion of the court was, that this was but a grant of the several rents of those tenants, as rent seck by this viz. which had been otherwise, if it had left at the premises without the viz. for then it would have been a new entire rent of ten pounds out of the whole demesnes of the manor. But I am of clear opinion, that if the particular rents in the first case had made but five pounds, that then the premises would have taken place, and the viz. had been void. Like unto the case of 15 Ass. 11. and 15 Ed. 3. Fitz. Charge 9. If A. grants twenty shillings rent in his one, note, 2 [172 b] Cr. 97. Dy. Post. 313. 10. b. 361. a. Ro. 2. 65. Mo. 8 Co. 93. b. 26. 3 Cr. 38. case. Dy. 126. 34. 1 Inst. 183. b. 160. b. Palm. b. Mo. 44. Co. L. 21. a. manor, viz. by the hands of one so much, and of another so much; and the tenants assigned are but tenants at will, the whole manor is charged; for the viz. being of no effect, is void in law; for itself being of no effect, cannot frustrate the premises, which are of sufficiency of themselves. 8 Ed. 3. 59. One gave land to A. and B. habendum to A. for life, and after his decease to B.; this was holden good. So Littleton 66. If a man give land to two, habendum to them, sc. the one moiety to the and the other moiety to the other, it is good. For that the substance of the premises is not altered; for both of them have the whole in use, in common, as they should have had it by the premises jointly, which is but a point of quality, or accident altered. But if it were twenty Finch. 58. utra. acres to two, sc. ten to one, and ten to another, it were void. So upon the cases 21 H. 6. 7. and 13 H. 7. 24, I hold, if I grant land to one and his heirs, viz. the heirs of his body, it is an estate tail. So 13 Eliz. Dyer 299. a quare impedit one is pleaded seised of a manor, to which the advowson appends, viz. to present in the third turn; it is good: but if one seised of a whole advowson should grant the whole, viz. to present every third turn, the viz. were void. So upon the case 9 Eliz. Dyer 261, Cr. Jac. 110. if a man have lands in a hamlet, and other lands in another part of the town; if he grant his lands in that town, sc. in the hamlet, I hold that no more will pass. But if he grant all his lands in the whole town, viz. in the hamlet, all the land will pass, and the viz. is void. Edw. 6 Dyer 77. the king granted situm abbatiæ nec non omnia terr. prat. pastur. et subscript. dict. monasterio pertinen. viz. such a close, and such a close; and the opinion is that the viz. shall only serve to explain the word subscript. and that all other the lands belonging to the monastery shall pass by the express words. In Mo. 167. [173] And 6 1 Leo. 120. Now to the second great point, which is, whether the covenant on the part of the grantor, for the five years, do disable the grantee, or those that claim under him, to take the trees after the five years expired. bon. case. Cr. Car. 21. The second great point. Mo. 23, 882. [173 a] 4 Co. 80. b. Mo. 7. 2 Cro. 481. 8 Co. 82. a. I will say little, for I declared myself, in the beginning, not to hold that questionable, neither do I yet. (2) For first it is clear, that by the grant of the trees by a tenant in fee simple, they are absolutely passed away from the grantor and his heirs, and vested in the grantee, and go to the executors or administrators, being, in understanding of law, divided as chattels from the freehold ; and the grantee hath power, incident and implied to the grant, to fell them when he will, without any other special license, which can never be restrained by a power given by the grantor in the affirmative, which the grantee had before. And therefore, 8 Ass. 10. one granted a rent of ten pounds a year to the husband and the wife for their lives; and if the wife survive, that then she shall have three pounds a year for her life; and judged she should hold her ten pounds a year; otherwise, if it had been said that she should have three pounds a year, and no more. And so Trin. 28 H. 8. Dyer 19. the lessor covenanted that the lessee might take thorn by assignment of the bailiff; yet he may take without; otherwise if it were in the negative. Statutes that are taken by intent, shall not, by an affirmative, alter a former power. 33 H. 8. Dyer 50. The stat. 27 H. 8. 17 Eliz. Dyer 341. hereafter. Now the grant implying an absolute liberty to the grantee to take, if the covenant were on the part of the lessee, not to take after the five years, it would not extinguish his property, nor consequently his power, to take them after the five years; and therefore if he took them, he might plead not guilty in trespass, but should be answerable to an action of covenant for it; for things have their proper effects and considerations, and several respects of actions are not to be confounded. And therefore, 3 Eliz. Dyer 199, if the lessor covenant to repair the house at his proper costs; or again, if the lessee covenant (2) General words in a grant are not restrained by restrictive words added ex majori cautela, or by affirmative words more restrictive, but which have no tendency to render a general description ambiguous or uncertain. Com. Dig. Parols, A. 23. 11 Mass. 167, Bott v. Burnell. to repair the house at his proper costs in timber work, and [1736] the like, yet in both cases, if he felled timber to repair, there is no change in the remedy by action of waste, but by action of covenant. The statute of 27 H. 8. of court of augmentation, all grants of lands, within their survey, shall be sealed with that seal; yet see 33 H. 8. Dyer 50. for want of a negative; much more if it had been 'may be sealed,' as here. 17 Eliz. Dyer 341. the late monasteries were given to the king; proviso, to avoid fraudulent leases within the year of the dissolution, and another proviso in the affirmative, that leases with the ancient rent shall be good; yet judged that a lease within forty days, without ancient rent, was good, for they had lawful power before, and there is no negative. Lastly, this covenant on the part of the grantor hath its necessary use, though it work nothing in the restraint of time for felling; for it gives power to dig, and make sawpits upon the ground, and to square the timber there, which the grantee could not do by the simple grant of the timber, without such a special warrant. Also it contains a general warranty, that the grantee may take and fell timber, without the let or interruption of any person or persons whatsoever. [174] The clause una cum omni Now to the third and last point; if the clause had been that the earl had granted all his woods and underwoods, growing upon all his manor of Cleave, which could con- bus aliis. veniently have been spared without prejudice to the estate of his manor, I should be of mind that this grant were void. (3) And yet it is true, that many things that are uncertain 2 Ro. 55. of themselves, being reduced to certainty by such means as either the law appoints, or the party himself assigns, may take effect; and therefore the cases put are clear, that the fine of a copyholder being uncertain, shall be made certain and reasonable by the jury and the court, (3) Quare whether a grant of all the wood, &c. in the words of the text, would not be construed as a covenant that the grantee may take the wood, and thus be valid as a covenant, though void as a grant? [174 a] upon the circumstances of the case. 20 H. 7. Case Strat. Mare Co. L. 45. b 1 Le. 254. Apr. 222. 5 Co. 25. a. So of convenient time of remove upon the death of a tenant for life. 41 E. 3. barr. 205. In trespass for eating his corn, the defendant pleaded that he had common, and the other left his corn there, after other men had carried, and it was ready to be carried, &c. of evil will, &c.; the plaintiff, that it was not dry, &c. But note, that all these, and the like, are provisions in law, for acts in law. Also I grant, that if the Earl had covenanted or granted, that George might have taken such trees as might conveniently have been spared without prejudice, &c. that this being but a covenant, or grant executory, he might have taken trees by force of it, and have justified, specially averring that they might be spared, and put himself upon the jury for it. But our case is not of that nature; but it is a grant or bargain which must take effect, and change the property of the thing granted, either presently and at once, or inchoativè, depending upon somewhat that shall reduce it to his full effect; which when it is done shall make the grant good ab initio. And if I make a lease to A. for so many years as I. S. shall name, or grant such liberties as another town hath, both these, at the time of the grant, appear in case to be made certain, and the common cases of grants that take the perfection by elections given by the party, or by the law, to certain persons. The same books and reasons that prove, that when the election creates the interest, nothing passes till election, the same prove that where no election can be, no interest can arise. Bullock's case, 10 Eliz. Dyer 281, feoffment of a house and seventeen acres, parcel of a waste; the feoffee, not his heirs, must make his election, or else the grant is void: and 2 H. 7. 23. So Hayward's case, Co. lib. 2. 36. If I give thee one of my houses, nothing passes till the donee choose; therefore he must do it; his executors cannot. 44 E. 3. 43, is a good case. A prior sold his woods, excepting forty of the best oaks, at his choice, to be taken within two years; then the prior brought an action of trespass |