coke a the lord Stafford case Trin James estatetail of the gift of the crown  to S and u his wife and the heir of the body of S t levy a fine to S and u his  wife come Ceo and to the heir of S by which fine S and u render the land to t  for twentyfive year S die u hold in by survivorship and the remainder of the  say estatetail descend to S the son afterward the queen by letter patent  recite the former estate and the reversion in the crown expectant grant the  reversion in tail to t and further will and declare that on the payment of a  certain sum of money by t he shall have the say reversion in fee t perform the  condition afterward S the son die and e his son upon who the say remainder  descend levy a fine with proclamation to c and other hold the grant to t be  good and on performance of the condition t gain the reversion of the feesimple  out of the queen and the issue of e be bar by the fine with proclamation a  grant with a condition precedent may be make as well of thing which he in  grant as of land which lie in livery and may be annex as well to a estatetail  which can be merge as to a estate for life or year which may be merge by the  accession of a great estate but such a increase of a estate by force of a  condition precedent ought to have four incident it ought to have a particular  estate such particular estate ought to continue in the lessee or grantee till  the increase happen it ought to vest at the time the contingency happen or  otherwise it shall never vest the particular estate and the increase ought to  take effect by one and the same instrument or deed or by several deed deliver  coke report b er p at one and the same time if the reversion in fee have in  the principal case remain in the crown the fine levy by e will not have bar  the issue but such issue may have enter SC Brownl Vid the entry   Entr nu coke  b between Thomas Malym plaintiff and Thomas Tully defendant in a replevin  which begin in the common plea Trin James rot upon the plead the party  demurrer in law and upon the whole record the case be such queen mary be seize  of a park call estwood park within the manor of Thornbury in the county of  Gloucester in fee and by her letter patent Julii year royal power Himself  grant the say park to Henry Lord Stafford and Ursula his wife and to the heir  of the body of Henry Lord Stafford by force whereof the Lord Stafford and  Ursula his wife be seize thereof accord the reversion over expectant to the  say queen mary her heir and successor which reversion of the feesimple by the  death of queen mary descend to queen Elizabeth hill Elizabeth Tyndal levy a  fine to the Lord Stafford and Ursula his wife come Ceo and to the heir of the  Lord Stafford of the say park by which fine the Lord Stafford and his wife  render it to Tyndal for year and afterward Henry Lord Stafford ultimo Jun  Elizabeth die and Ursula survive he and hold in by survivorship and the  remainder of the say estatetail descend to Henry Lord Stafford the son and  afterward queen Elizabeth by her letter patent jul Elizabeth recite the former  estate the reversion and reversion thereof to the say queen Elizabeth her heir  and successor expectant the say queen Elizabeth by the say letter patent and  for the sum of S pay by Thomas Tyndal gentle do grant to the say Thom Tyndal  return prd to act sparingly c habendettenend Himself et hred de corpore his  legitime bring into existence et of one another predicta coke a recently queen  Elizabeth to cause to revolve et to disclose per easden litter patenes quod si  prfat Thomas Tyndal hredesetassignati Himself ad some time imposterum to  loosen seu to loosen to make or the dawn some to loosen seu to loosen to make  ad retreat scaccar Pedro prd nu r Regin hxred well successor to sew ad use  Self recently Regin hred well successor to sew top twenty solido of coin  England pro prmissis ultra prd top S tunc eaden recently queen Elizabeth de  ampliori agreeableness svan not general ac ex certan knowledge et mero  movement nest to cause to revolve et per easden litter urge patenes pro see  hredibus et successor nest to go away et to disclose quod extunc idem though  Tyndal et hredes sen haberentettenerent ac to have rashly et gander valerenet  to be able Himself et hred nest imperpeluum army earundem a letter to stand  open to sew pace return prd to act sparingly cum pertinent inter alian habend  tenant et gandendi she in all respects et one prmissa cum pertinent prfat  though Tyndal hredibus et assignat nest by force whereof the say Thomas Tyndal  be seize of the say reversion in tail and he be thereof so seize the reversion  over to the queen as aforesaid the say though Tyndal Feb Elizabeth at the  receipt of the exchequer at Westminster pay to Thomas gardener then one of the  teller of the exchequer to the use of the say queen the sum of S for the say  park above the say sum of S which S be then receive prout per record A  receiving in de in curian scaccarii domini king nunc at Westminster prd  remanen plene to be fluid et that this only is apparent by force whereof he be  seize of the say reversion in fee expectant on his estatetail and afterward  Henry Lord Stafford Elizabeth die after who death the say remainder descend to  Edward Lord Stafford his son who pasch Elizabeth levy a fine to clark and  other of the say park with proclamation and afterward the say Ursula Elizabeth  die and afterward Edward Lord Stafford die and Edward Lord Stafford that now  be his son and heir pretend that the say reversion in fee do not accrue to  though Tyndal by the payment of the say S but remain in the crown by the say  Thomas Malym distrain the cattle of Tully the plaintiff in the say park who  claim under the say fine and to enforce the letter patent of queen Elizabeth  the statute of confirmation of letter patent make a Elizabeth cap a Elizabeth  be plead which be not pertinent to this case but the principal point of this  case be whether by the payment of the say S the say though Tyndal have gain  the reversion of the feesimple out of queen Elizabeth for if no reversion  remain in the queen then the b raym and h cap b fine with proclamation bar the  Lord Stafford coke report b er p that now be who claim as issue in tail and if  the reversion remain in her at the time of the fine then the fine levy by  Edward Lord Stafford the father do not bar he coke b and this case be very  well argue by the sergeant sure Hutton Nichols Harris the young and Houghton  and afterward this term the case be argue by all the justice of the bench sure  coke chief justice walmesley Warburton Daniel and Forster and two objection be  make against the substance of the grant and two against the form of the grant  the objection against the substance be that such condition can be annex to a  thing which lie in grant but to a thing which lie in livery and therefore it  be say that rend commons advowson reversion c can be grant for life or year  with condition to have fee but only land which lie in livery for the increase  of such future estate rather take effect by livery than by grant for without  livery such future estate will not pass in case of land and it ought to pass  ab beginning by the first livery and a man can grant a rend in be or a common  or advowson or c blow b a a cro Elizabeth Leon   light b c a reversion or any  thing which lie in grant to begin in going to be as from Michaelmas next  follow or after such a act do c and all the book in the law which speak of  such condition for increase of a estate put the case always of land to which  livery be requisite Edward voucher e feoff et faits e quid law proclaim e  voucher e e ass p ass p e Garr e ass p e attaint e r quid law proclaim h blow  Com say case blow Com the Lord lovel case the second objection be that such  condition which increase a estate ought always to merge the first estate upon  the increase and make all but as one estate and one grant and therefore it  ought to be annex to a estate for year or life which so may merge on the  performance of the condition that all shall be but one estate by one grant and  not several and divide estate and therefore in all the say book such condition  always annex to a estate which may merge but in the case at bar the condition  be annex to a estatetail which can merge d a   a Bl Com d by the access of the  feesimple to it and such condition be never annex to a estate tail in any book  or precedent which can be show as to the objection to the form of the giant  the first be that after the queen have grant the reversion to Thomas Tyndal  and to the heir of his body she now upon the to touch grant to he predictam  return to he and his heir in which it be say the queen be deceive in her grant  for predicta return be that which the queen have grant before to Thomas Tyndal  in tail which now she can grant in feesimple for thought Regin non it agrees  together agreed cum lege for that which she have grant first in tail coke a  she can afterward grant in fee and the estate tail be grant absolute and can  be merge or destroy by the say grant upon the say contingency the second  objection as to the form of the grant be that the say grant find only in  covenant which in the case of inheritance shall not transfer it in the king  case as it may in case of a charter and for that the word be that the queen  will and declare that if the say Thomas Tyndal shall pay S then the say queen  grant that the say Thomas Tyndal and his heir shall have the say reversion so  that the reversion itself be not grant but be a grant which sound in covenant  that he shall have the say reversion but it be resolve by the whole court upon  solemn argument that the say grant be good   light b and as to the two first  objection it be resolve that such grant with a condition precedent may be make  as well of thing which lie in grant as of land which lie in livery and may be    a annex as well to a estate tail which can be merge as to a estate for life  or year which may be merge by the access of a great estate but such increase  of a estate by force of a condition precedent ought to have four incident  Brownl it ought to have a particular estate as a foundation upon which the  increase of the great estate shall coke report b er p be build that such  particular estate ought to continue in the lessee or grantee till the increase  happen Plowd a a     light b such foundation ought not to be revocable at the  will of the grantor or lessor it ought to vest at the time the contingency  happen or otherwise it shall never vest the particular estate and the increase  ought to take effect by one and the same instrument or deed or by several deed  deliver at one and the same time and not by several deed deliver at several  time a in shepherd touchstone another requisite be mention videlicet that the  condition be possible and lawful for upon a impossible condition the estate  can and upon ail unlawful condition it shall not increase Vid Fearne count  remainder that Edward Com dig Cond b a as to the saint it be prove by all the  say book that there ought to be a precedent estate upon which the estate as  upon a foundation may increase touch Fearne count term that edit cruise vol  Com dig Cond b but coke chief justice say that such foundation ought to be  permanent and not revocable at the will of the grantor or lessor and therefore  if a man grant a advowson to another at will upon condition that two he do  such a thing that he shall have fee in that case the estate at will be not any  such foundation as the law require to support a increase of a estate of  freehold or inheritance for the grantor may determine the will before the  condition perform and so avoid his own grant and a lease at will can support a  remainder over Cr James Cr car   b roll Rep   light b   b side and if a man  grant ail advowson or a rend c for year upon condition that if the lessee pay  S within one year that he shall have for life and if after the year he pay S  that he shall have fee the lessee pay the S within the year and after the year  he pay the S accord to the condition yet he shall have but for life for the  estate for life at the time of the grant be but in contingency which be not a  foundation upon which a great can increase for a possibility can increase upon  a possibility and the estate of coke b feesimple can increase upon the estate  for year for that be merge by the access of the estate for life as shall be  afterward say as to the second the privity of estate ought to a h Br expose de  parols   b   b Plowd b Cr car a continue and that be prove by the say case of  the Lord Lovel and therefore if the lessee for life or year or the donee in  tail who have such a condition annex to his estate alien before the condition  perform or if lessee for life or year surrender to the lessor he shall never  take benefit of the condition afterward for the privity of estate in such case  ought to continue for the increase of the estate ought to enure upon the  particular estate as upon a foundation and therefore if in such case the  lessee for life or year or the donee alien all his estate and take back a  estate and afterward perform the condition yet nothing shall thereby accrue to  he because by the absolute alienation the privity be once absolute destroy  which can by any reprisal of a estate be revive as if one coparcener after  partition make a feoff in fee and take back a estate to herself again and her  heir yet the privity of the estate to have b Br aid roll Br perempt Br  coparcen Br counterpl de aid Fitzherbert counterpl de aid b aid to deraign the  warranty paramount be destroy I h b vide e b so if tenant by homage c light  sect   light a b c ancestral make a feoff in fee and take back ail estate to  he in fee he shall not hold by homage ancestral light lib b but if lessee for  life c grant his estate upon condition and enter for the condition break and  afterward perform the condition there peradventure the fee shall accrue to he  for the possibility be not absolute destroy and when he enter for the  condition break he be in his old estate and that the particular estate shall  continue to all respect be not necessary but if such a privity of estate  continue as be capable of a increase it be sufficient and therefore if such  lessee for life make a lease for year or if lessee for year make a lease for a  lesser term or if coke report a er p such donee make a lease for his own life  or for year yet for the privity of estate which continue in they they be  capable of a increase of a estate ut if such tenant in tail make a lease for  the life of another there he be not capable of any increase because he have  gain a new reversion in fee and the first privity do not remain and yet in  such case if the lessee for life die there the first privity of estate be  revive so if a d Brownl Raymond d man make a gift to one to have and to hold  to he and his heir of the body of his wife beget with such condition ut above  and afterward the wife die without issue so that now he be become tenant in  tail after possibility in that case although the estate be change yet  forasmuch as the privity remain he may by the performance of the condition  have fee after so if a a Brownl a lease be make to two with condition to have  fee and one die the survivor may perform the condition and have fee but if the  say coke a jointtenants have make partition of the term the condition be  destroy for the estate in fee ought to increase to they joint and not in  severalty and in the case at bar although t Tyndal have die before the  performance of the condition his heir of his body may have perform it for  although the person be alter yet the same estate continue and this power to  perform the condition descend b roll Rep b to his heir as a inheritance annex  to the foundation which descend to he and be after the condition perform shall  have the reversion in fee in modus by descent as in Shelleys case in the first  part of my report and although it be requisite that privity of estate shall  continue yet it be not requisite that the increase shall merge the particular  estate for if a man make a lease for life the remainder for life or in tail on  condition that if the first lessee do such a thing that he shall have fee in  that case by the performance of the condition he shall have fee and yet he  shall not merge the estate for life quod to be concession per curian and if a  mail make a lease for year on condition that if the lessor c   light a   b c  ousts he within the term that he shall have fee in that case if the lessor  ousts he now the interest of the term be turn into a right and yet the lessee  in such case shall have fee for two reason because it be the act and wrong of  the lessor himself whereof he shall not tale advantage eastern instant that  the lessor ousts he eastern instant the lessee have fee and the title of the  lessee be by force of the condition which be paramount the ouster and  therewith agree r d   light a b Plowd a b a dyer pl Perk sect and Cr James  Jones godb roll Rep h b Goldsb   b Brownl d quid law proclaim and that a  possession in a instant be sufficient to support the increase of the fee  appear in e voucher a man e   light a e make a lease for year on condition  that if the lessor do not pay to the lessee mark at the end of the term that  he shall have fee there the end of the term consist on a instant of time and  if the estatetail of the Lord Stafford have determine for want of issue and  Ursula have die so that the reversion of t Tyndal have come in possession yet  forasmuch as the privity of the estate continue although the quality of the  reversion be alter to a possession the condition remain but there be a  difference between the continuance of the privity of the estate of the f Plowd  b a f lessor or grantor and the privity of the estate of the lessee or grantee  for the privity of the estate on the part of the lessor needs not be continue  for although the lessor or grantor alien his reversion or be attaint c yet the  condition remain for by no act that he can do call be frustrate or derogate  from his grant and therewith agree Edward feoff et faits   light b r quid law  proclaim a Plowd a a and Plowdens Com in the say case of the Lord Lovel but if  lessee for year with condition to have fee accept a release from the lessor to  he for his life or in tail and afterward the condition be perform coke report  b er p he shall never have fee because coke b the estate for year which be the  foundation upon which the fee shall increase be by his own acceptance of a  great estate merge and have no continuance as if lessee for year without  impeachment of waste b die pl   b   a Bulst h a Poph latch b take confirmation  for life the privilege which be annex to the estate for year be lose h a  Edward a b in mary de la   a Poph idle case h dyer b c and it be resolve that  if queen Elizabeth have die before the condition perform that yet Tyndal may  have perform the condition and if queen Elizabeth under her great seal have  refuse to take the say money c Brownl c yet if Tyndal have tender it at the  receipt of the exchequer that he have gain the feesimple for the queen by no  mean can countermand or binder the increase of the estate in such case as to  the three it be resolve that if the condition have be that when Tyndal shall  pay to I S S that he shall have fee that present by the payment by operation  of law the fee will be d blow a   light b   b d divest out of the queen and  vest in Tyndal and that for necessity for if it shall not vest at the time of  the condition perform it shall never vest and therefore if office or petition  to point out de law or other thing shall be requisite it will make the queen  grant void and disable the queen to make such grant and therewith agree Plowd  Com in the say case of the Lord Lovel for there it be say when the condition  be perform the feesimple shall be immediate out of the king without petition  or to point out de law or other circumstance for if he ought to stay to use  such circumstance then it will not vest present and if it will not vest  present ergo it will never vest for if a estate can be enlarge at the time of  the enlargement appoint it shall never be enlarge and these be the word of the  book and therefore for necessity the feesimple shall pass in the case at bar  out of the queen without any circumstance for the law will never require  circumstance when it will subvert substance and therefore there be a notam ble  case in e a b where the case be that Isabel e Brownl   a b light Rep godb Cr  Elizabeth Br escheat Br devise Fitzherbert devise Plowd a   a raym ass hard  Swinb roll Rep e Goodcheap be seize in fee of a certain house in London and by  her will in write and enrol devise the say house hold of the king to Richard  Goodcheap to he and to the heir of his body so that if he die without issue  that the say land shall be sell by her executor or executor of executor c and  make W d and W W and I de t her executor and die without heir Richard  Goodcheap die without issue by which the house escheat to the king and  afterward I one of the executor die W W refuse and W d sell c and there it be  make a question whether the sale by one executor be good or not but it be  agree by all that if the sale be good it shall divest the land out of the king  and the reason be for necessity of law for if the sale do not divest the land  at the time of the sale no sale shall be make at all and the executor coke a  who have but a power can have a petition to point out de law or other remedy  as to the four incident it be resolve that it ought to be by one and the same  deed or grant or by two deed deliver at a   light a Brownl a one time which be  all one in effect for b brown   a   light a b queen intemperate of facio to be  in to see and the reason thereof be because the foundation sure the particular  estate and the increase of the estate thereupon be but one grant to take  effect out of one and the same root although it vest at several time yet when  it be vest it have its vigour and force of one and the same grant and  therefore it be well say in h a c b relate c that when he have perform the  condition he have fee from the time of the commencement of the lease as by one  and the same grant and as one and the same estate coke report b er p as to the  first objection against the form of the grant sure predictum reversioner to  construe it to extend to the estatetail grant before to Tyndal which the queen  can grant again and not to the reversion of the fee which the queen may grant  and which be mention before will be a d   b d construction tend in great  dishonour to the queen and in great damage and disinherison of the subject in  dishonour to the queen for three cause to have her grant under the great seal  by captious and nice construction avoid to presume such ignorance in the queen  who be a wise learned and most excellent princess and the phnix of her sex  that she intend to grant that which she can not grant and not that which she  can that the queen as it be object can not make such a grant in going to be  when a subject may do it without question therefore a strong the queen may do  it in such case also it will tend to the damage of the subject who shall have  the king charter under the great seal but by a nice and captious construction  he shall lose the land contain therein which will sometime tend to the ruin of  he and his posterity and the case of sir John e   b a   b e Molyns the Lord f    a b a   b f chandos and the earl of Rutland be affirm for good law but note  the queen grant not only prd reversion but also omnetsingul prmissa c g     b  g which word make this point clear and as to the last of the say two objection  it be resolve per tot cur that the word be sufficient to pass the inheritance  of the land for to pass a future estate upon a contingent word in going to be  be apt and sufficient enough as in all charter and letter patent of land the  clause of grant of liberty and franchise be all with such word in effect as  these be because they be contingent and de going to be and the h Brownl h  invention of this grant to Tyndal be commend by the justice for when the Lord  Stafford be tenant in tail the I and h cap I reversion to queen mary if the  queen have grant the whole feesimple to Tyndal then by a common recovery or  fine levy the coke b Lord Stafford may have bar his issue and by a common  recovery the reversion to Tyndal in fee which be neither the queen nor tyndal  intention but the purpose be that it shall be in the power of Tyndal and the  heir of his body to hold and restrain the Lord Stafford and the heir of his  body that they shall not alien or bar his reversion in tail or by take the  feesimple oh ut of the crown by the performance of the condition to enable  they to alien but coke chief justice in his argument move a question on the  statute of a   Litt b   b h c   a and   a   a hob roll Rep more and Cr car  Plowd a Yelv Nov   light a Leon Leon Leon Benl in kelw a b be be in ash n be  pl roll Rep raym Cr Elizabeth a h c that if the Lord afford and his wife have  suffer a common recovery with voucher if thatshould not bar the reversion  which Tyndal have in tail the reversion in fee be in the crown and thereupon  he consider the word of the say Act the preamble of which seem to provide for  the heir of the body of the king donee and the question mention in the  preamble be whether such feign and true recovery against such tenant in tail c  shall after the death of the tenant in tail bind the heir in tail or not and  the body of the Act be for the lie declaration whereof and to avoid and  extinct from henceforth diversity of opinion in such case be it ordain and  enact that no such feign recovery hereafter to he have by assent of party  against any such tenant in tail of any land c whereof the reversion or  remainder at the time of such recovery have shall be in the king shall bind or  conclude the heir in tail whether any common voucher he have in any such feign  recovery or not but that after the death of every such tenant in tail c the  heir in tail may enter c so that by the letter of the coke report a er p Act  no remedy be provide for he in reversion or remainder in tail although the  reversion of the fee be in the king but yet the chief justice hold that by  necessary consequence b   light b roll Rep b such reversion and remainder in  tail be preserve by the say Act for when there be tenant in tail the remainder  in fee and tenant in tail suffer a common recovery the reason of the bar of  the estate of he in the remainder who be a stranger to the recovery be by  consequence because the common recovery bar the estate of the tenant in tail  who be party to the recovery and by consequence all reversion and remainder of  common person expectant thereupon but when the Act of Henry provide that no  common recovery have against tenant in tail who be party to the recovery shall  bar his issue when the king have the reversion c thereby inclusive the Act  preserve the reversion and remainder in tail of the king grant for they can be  bar but when the estate tail upon which they depend be bar and that be the  reason that when tenant in tail be in of another estate and suffer a common  recovery as tenant it shall not bar coke a any reversion or remainder because  the same shall bar the estate of the tenant in tail who be party to the  recovery for c Brownl c quod non valet in first in assessory seu subsequent  non to be strong etquod non valet in to greater extent relative non to be  strong in to greater extent renoto and if the Lord Stafford may have bar the  reversion in tail of Thomas Tyndal before the condition perform the invention  of the say grant have fail of its final purpose for which cause it seem to the  Lord chief justice that the say Act preserve the say reversion of the say  Thomas Tyndal quod to be concession per totan curian last it be resolve per  totan curian that if the a more be in Kel Cr Elizabeth Cr car Leon Anders a  reversion in fee have remain in the crown that the fine levy by the say Edward  Lord Stafford the father have not bar the Lord Stafford that now be but that  he may enter accord to the resolution in b hob   light a raym say b Notleys  case pasch Elizabeth in common banc etprcipue by reason of these word in the  say Act of h the say recovery or any other thing or thing hereafter to he have  do or suffer by or against the such tenant in tail to the contrary  notwithstanding b Vid upon the construction of the stat h c note c wiseman  case   b b