coke b edward SEYMORS case mich James in b r it be find by a special verdict  in ejection firm that t c devise a certain message to h c his son and heir in  tail remainder to I c in tail male remainder to the next heir male of t c and  to the heir male of their body remainder to the next heir male of the say t c  that t c die h c enter and bargain and sell the say message c and that the  bargainee enter and be seize c afterward h c levy a fine with proclamation to  the bargainee with general warranty to he and his heir against all man that  the bargainee feoff e S in fee who feoff h S in fee who feoff e l S in fee  that c have issue t and die and afterward h c die without issue and that t be  heir to H C that e l S die leave the lessor of the plaintiff his son and heir  and that the defendant enter as servant to t judgement be give for the  defendant and affirm on error resolve by the deed indent of bargain and sale  enrol the bargainee have a estate descendible to his heir determinable upon  the death of the tenant in tail and also he have the reversion in fee  expectant upon the estate in remainder in tail and the wife of such bargainee  shall be endow the fine levy to the bargainee do not make a discontinuance of  the remainder to c but corroborate the estate of the bargainee and by such  fine the estate with respect to the estate tail in h c be now not determinable  till tenant in tail die without issue the warranty shall not bar the remainder  a warranty can enlarge a estate the feoff of the conusee be no discontinuance  of the remainder of I c if the collateral warranty shall bind it may be give  in evidence of estate of inheritance and of freehold and the manner of plead  they SC Bulstr jenk cent enter James b r rot cro car hard Carthew Rep Q a I  between William Heywood gentle plaintiff in ejection firm in the king bench  and Samuel smith defendant upon a demise make by Edward seynor esquire of Mars  year James of a house within the parish of saint whether infra prcinctum  Blackfriar in ware de Farrington infrb London for three year c and that the  defendant have eject he c the defendant plead not guilty and upon this issue a  special verdict be give to this effect sir Thomas Cheyny knight be seize of  the say message in fee and Dec year Elizabeth by his will in write devise the  say message to Henry Cheyny his son afterward Lord Cheyny and to the heir of  his body the remainder to John Cheyny and to the heir male of his body the  remainder to the next heir male of the say Thomas Cheyny and to the heir male  of their body the remainder to the next heir of the say sir Thomas for ever  and afterward the say sir Thomas Cheyny die seize after who death the say  Henry his son enter into the say message and be thereof seize in tail with the  remainder over in tail the reversion in fee to he and his heir and Dec year  Elizabeth by a indenture enrol in the chancery within six month for a certain  sum of money bargain and sell the say message to William Higham gentleman and  his heir by force whereof be enter and be thereof seize a accord and a it be  upon this find and because there be no covenant in the bargain and sale for  levy the fine nor any intention find to have be of levy the fine at that time  that this case must have be adjudge for otherwise the deed and the fine will  have be but one assurance and then the fine will have work a discontinuance do  v Whitehead burr note in sergeant hill co that Vid note sand a coke report a  er p afterward the say Henry Cheyny know Oct mich Elizabeth levy a fine with  proclamation of the say message to the say William Higham and his heir with  coke a general warranty to he and his heir against all man William Higham Dec  year Elizabeth of the say message feoff Edward Stanhope Esq in fee who Jan  year Elizabeth feoff Henry Lord seynor in fee who ult Oct year Elizabeth of  the say message feoff Edward Lord seynor in fee and that the say John Cheyny  in remainder have issue Thomas Cheyny and die and afterward the say Henry then  Lord Cheyny die year Elizabeth without issue and that the say Thomas Cheyny be  cousin and heir to the say Henry Lord Cheyny and the say Thomas Cheyny Nov  year Elizabeth enter into the say message claim the say message by force of  the say remainder in the say will and that the say Edward Lord Seymour die  have issue the say Edward the lessor of the plaintiff his son and heir who  enter into the say message and make the lease to the plaintiff as in the  declaration be allege and that the defendant as servant of the say Thomas  Cheyny and by his commandment eject he c etsi super totan means the say  defendant legitime to go into or not a swearer pr6ed ignorant et to strive for  ind advisamentuni Curice c and this case be argue at the bar and at the bench  in the king bench and therein diverse point be resolve per totan curian that  by the deed indent of bargain and sale enrol the bargainee have a estate  descendible to his heir determinable upon the death of the tenant in tail and  also he have the reversion in fee expectant upon the estate in remainder in  tail and that the wife of such bargainee shall be endow and therewith agree a  e b in Callis case but such dower shall be determinable by the death of the  tenant in tail b Iff it be resolve that the fine levy to the bargainee do not  make a discontinuance of the remainder to John Cheyny because it do not touch  or displace his remainder and no estate of freehold pass by the fine but the  fine with proclamation corroborate the estate of the bargainee b and by the  statute of c h c and h c make his a cart b it be now settle that a release or  bargain and sale by a tenant in tail will convey a hase fee voidable by the  issue in tail Machil v clark salk SC l raym Goodright v mead burr do v river  TR and Vid the case of fine   a b the wife be clear entitle to dower for the  husband accord to the decision above cite have a base fee Mr serj William in  note take v Glascock sand a do not dispute the general principal but inasmuch  as the wife of a bargainee or releasee of a tenant in tail be defeat of her  dower by the entry of the issue he question the decision in Callis case and  remark in that case the tenant in tail who have release to the husband of the  demandant in fee be dead and the demand of dower be against the issue in tail  who have enter and thereby determine the estate in fee out of which the dower  be claim in Mr park be treatise on dower p it be observe that Callis case be  strict consistent with the general principle of law on this head that case be  determine upon another ground overlook by the learned editor of sander that  the lease and release of the tenant in tail be with warranty be consider to  work a discontinuance and therefore the entry of the issue be not congeable  such certain appear to be the case from the statement of it in brook  abridgment dow pi and the book add that the judgement be against the opinion  of some for it seem that the release with warranty of the tenant in tail be  only a grant of her estate the case as report in the yearbook Edward be open  to the criticism of the learned sergeant for the release be not there say to  have be with warranty the case however be no doubt as state by brook Vid  Edward Fitzherbert ab dow b Bulstr   light b cro car more pl   a post a c    light a a b a Inst Inst Leon Leon Leon and Poph   b b a b a b a b a a b a   b    b   b a b cro Elizabeth say palm gold Plowd b b Bulstr die pl pl pl pl pl pl  pl pl coke report b er p estate more perdurable for where it be have regard to  the estate tail determinable upon the death of the tenant in tail now it be  not determinable till tenant in tail die without issue but if the d fine have  be levy before bargain and sale enrol it have be a discontinuance c as it be  resolve in hind case in the four part of my report f b but in the e case at  bar the fine operate upon the estate precedent which pass by the bargain and  sale and be guide by the precedent estate and no conclusion for he may confess  and avoid as in r a estoppel I I t it be object that where by the feoff of the  bargainee the remainder of I Cheyny be displace b and put coke b to a c right  so as the warranty in the fine descend upon John Cheyny who have but a right  and therefore shall bar he it be unanimous resolve per totan curian that this  d warranty shall not bar the remainder for diverse reason because every  warranty ought to be knit and annex to a estate for every warranty e have its  essence by dependency upon a estate and in this case at the time of the fine  levy the warranty be annex to the feesimple determinable upon the death of the  tenant in tail without issue and to the reversion in fee but do not extend to  the estate of John Cheyny in the remainder for that be not then displace or  divest but continue in he for John Cheyny at the time of the fine levy and  after be seize of his remainder then if the warranty at the time of the  creation of it be annex to a estate the conusee by his feoff or other act can  extend it far than it be at the time of its creation and therefore when the  estatetail to which the warranty be annex be determine by the death of the  tenant in tail without issue the warranty which have its essence by dependency  be also f determine for then there be no estate which will support it d and  therefore it be agree that if a man make a gift in tail and warrant the land  to he and his heir and afterward tenant in tail make a feoff in fee and die  without issue the feoff shall not g rebut the donor in a formedon in the  reverter because the estate to which the warranty be annex be determine but it  be hold in e that if a man make a gift in tail and warrant the land to he his  heir and assign and afterward tenant in tail make a feoff in fee and die he  shall rebut the donor by force of the say warranty in a formedon in the  reverter and this book be cite by Wilby in h e b which book be good law if it  be intend of a gift in tail make before the statute de gift conditional for  then the warranty be annex to a estate in feesimple and the donor have but a  possibility of reverter which may be bar by a collateral warranty vide I ass  pl and blow Com in the Lord Barkleys case a but when a man make a gift in tail  with warranty after the statute this warranty in what manner soever it be make  can extend to bar the reversion in fee for the estate to which the warranty  extend be determine by the death of tenant in tail without issue and as have  be say a feoff or d cro car and and Benl hob Owen Poph cro Elizabeth Inst godb  Leon Leon jenk cent buist Bulstr more   b c for then at the time of levy the  fine the conusor will have be tenant in tail in possession which it be  necessary he shall be in order to work a discontinuance do v Jones barn Cress  SC dow Ryl e   a hind case a Bulstr Cr Elizabeth r estoppel   b a b cro car    a jenk cent c   a d jenk cent e Bulstr infra f cart d Vid hunt v burn salk  smith v Tyndal salk touch g   light a Bulstr   a Vaugh a   light a Bulstr   a  Vaugh Br form Plowd b Fitzherbert guaranty Statham guaranty I   light b b  Plowd a b Fitzherbert Garr Br asset per descent Br tail Br prerog Br search  pur Le roy Br garran coke report a er p other act do by the donee subsequent  shall not extend the warranty further than the estatetail to which the  warranty at the time of the creation of it be annex it be a maxim in the law  that no king warranty shall extend to bar any estate of coke a l freehold or  inheritance which be in be in possession reversion or remainder and not  displace and put to a right before or at the time of the warranty make  although afterward and at the time of the descent of the warranty the estate  of freehold or inheritance be displace and divest e and therefore if there be  father and son and the a son have a rentservice rentcharge or rentseck or  common of pasture issue out of certain land and the father release to the  tenant of the land with warranty and die it shall not bar the son for of the  rend or common the son be b actual seize at the time of the warranty make and  he who be in possession need not put in his claim either to avoid a fine or  collateral warranty and in the same case although the son after the warranty  make be c seize of the rend or common and afterward the father die that shall  not bar he because the warranty at the time of the creation of it do not  extend to any estate of freehold or inheritance in be at the time of its  creation but if the son be seize of the rend or common and affirm himself to  be seize by d bring of a assize f and afterward the father release with  warranty and die there the collateral warranty shall bar the son of his rend  or common because he have but a bare right at the time of the warranty make  vide e ass p ass p ass p e guaranty so if f my collateral ancestor release to  my tenant for life and die it shall not bind I because the reversion continue  in my person but if my tenant for g life be seize and my ancestor release to  the seize with warranty and die it shall bind I because as well the estate of  the tenant for life as my reversion be divest out of I at the time of the  warranty make and with this h e b h a agree it be clear resolve that a  warranty can I enlarge a estate h b h b h h a e b ass p vide ass p e tail e b  e b ass Hassingborns assize it be resolve that the feoff of the conusee be no  discontinuance king of king   a   light b l   light b b   a I ander e in hunt  v burn salk Powel I hold that there may be a discontinuance which turn the  estate to a right and yet do not take away the right of entry and that a  warranty may bar when the reversion be only displace and turn to right though  the right of entry be not take away Vid Stephen v Britridge I lev SC side raym  touch a Ch light b b   light b c   light b d   a f without a assize the son  shall not be say to be out of possession of a rend or common c for a man can  be seize of a rend c except at his election and seize at election be mere a  supposition for the sake of the remedy by assize now by stat and whether c all  collateral warranties by any ancestor who have no estate of inheritance in  possession of the land tenement c warrant be void against the heir e ass Br  charge Br estate Br Garrant Br extinguishment f   light b g   a roll h Statham  guaranty I   light b b ass ass f b Perk sect Bulst Statham gar   a Fitzherbert  feoffm Br estate Fitzherbert annuity Br garran king Bulstr more pl cro car    light b before a coke report b er p the remainder of John Cheyny so that his  entry shall be toll for none can discontinue the remainder or reversion but he  only to who the land be entail and therefore if tenant in tail grant totan  stalum suum to one and he make a feoff in fee it shall not toll the entry of  he in the remainder or reversion coke b it be resolve that if the collateral  warranty shall bind that it may be well give in evidence and find by the jury  g although some opinion obiter be to the contrary in ass p h a vide e title m  law for although a collateral warranty a give not a right yet in law it bar  and bind a right and therefore may be give in evidence and eastern polins  because now in b ejection firm and other personal action it can be plead by  way of bar e Entre h a h a h a e b e e b e a b h b h a b h trespass h b and  that a collateral warranty may be give in c evidence and find by the jury upon  not guilty plead in ejectionefirm appear in the first part of my report in d  chudleighs case and accord to these resolution in Trin James king judgement be  give for the defendant whereupon the plaintiff bring a writ of error upon the  new statute in the exchequerchamber where it be resolve in this very term by  all the justice of the   non plea and baron of the exchequer that the  judgement give by the judge of the king bench shall be affirm and that the  warranty do not bind the remainder of John Cheyny for the reason and cause  before recite without any great difficulty notam reader every e estate  descendible to the heir be either a estate of inheritance or a estate of  freehold and estate of inheritance be either feesimple or feetail a estate of  feesimple be either a estate of inheritance absolute and indeterminable as  where land be give to a man and his heir he have such a pure and absolute  estate which can never determine or a feesimple determinable and that be in  two manner so either express derive out of a absolute and pure estate in  feesimple or implicit and derive out of a estatetail out of a absolute estate  in fee also in two manner first by condition as upon mortgage and that be call  a feesimple conditional second by limitation as if a feoff b of the manor of d  to have and to hold to he and his heir so long as c have heir of his body and  that be call a feesimple limit and qualify and in both these case the whole  estate in the land be in the feoff and therefore no f remainder or reversion  can be expectant upon either of they implicile and derive out of a estatetail  as in the case at bar when tenant in tail bargain and sell the say message by  deed indent and enrol to William Higham and his heir and afterward coke a levy  a fine to he and his heir with proclamation he have a estate in feesimple as  long as the tenant in tail have heir of his body derive out of the estatetail  and this be a more inferior and subordinate estate in feesimple than the other  two aforesaid for upon this a remainder or reversion may be expectant and yet  in g all these case he who have any such estate of inheritance may plead that  he be seize of the land in his demesne as of fee without show the beginning of  his estate as well when he have a feesimple derive out of a estatetail as a  feesimple conditional or limit a estate of freehold descendible in like manner  be either express or imply express as if a man demise land to one and his heir  h during the life of I S or tenant for life grant his estate to I one and his  heir l Bulstr   light a a roll g Acc smith v Tyndal salk m e Fitzherbert law a  roll Ant a b b Doct pl salk salk c Bulst Doct pl d   b e   light b f   light a  palm hut Leon roll Rep Vaughan roll blow a b a g Doct plan cart light sect h    b Br estate hob Yelv blow b Bulst b n c keb I dyer pl   light a b Fitzherbert  account Cr James roll more I   light b coke report b er p in these case the  lessee or grantee have a estate of freehold descendible but no estate of  inheritance for he shall be punish a for waste and he in reversion or  remainder shall enter for forfeiture and his heir shall not have his b age for  he in a manner be but a special occupant h nor shall he be in respect thereof  charge as heir in a action of debt implicit as where in the case at bar tenant  in tail bargain and sell the land to William Higham and his heir he have a  estate descendible and determinable upon the death of the tenant in tail and  yet he have a better estate than the other have for he shall not be punish for  waste c or if he make a feoff none shall enter for the forf eiture and his  wife shall be d endow determinable upon the death of tenant in tail and yet e  you pleader look well to it that in such case you do not begin your plea that  the bargainee in such case to be seisitus in of his in de jeodo but f the sure  way be to plead the special matter and to aver the life of the tenant in tail  and so you will the better understand your book S Litt b cap tail cap guaranty  e e a Edward h h e h h b h h h e e account ass Pla ass Pla h e e h coke b h  distinction estate Elizabeth die Edward b Edward Plowdens commentary in  walsingham case and I conceive that in the case at bar the remainder of John  Cheyny by the feoff of the conusee to Edward Stanhope and his heir be not  displace nor put to a right for the conusee have a feesimple determinable upon  the death of Henry Lord Cheyny without issue of his body and when he make the  feoff his determinable feesimple in possession and his absolute feesimple  expectant upon the estatetail of John Cheyny in the remainder shall pass and  shall not divest the remainder of John Cheyny for the feoff which in himself  be not tortuous can be tortuous to another but where tenant for life or tenant  in tail make a feoff the feoff in itself be tortuous for tenant for life or in  tail can give in fee and therefore the feoff itself be tortuous and in case of  a estate tail be tortuous as to its issue but when he who have a feesimple  although it be determinable make a feoff in fee he who have the feesimple give  a feesimple and thereby he do no wrong to his heir and by consequence no wrong  to he in the remainder also the estatetail by the say fine be utter bar and a  new estate in feesimple create notam also reader there be some title to which  a g warranty do not extend as the title in case of discharge condition upon  mortgage c mortmain consent to ravisher and the like because for these no  action lie in which there can be voucher or rebutter neither can a descent  toll the entry in such case and they continue in such plight and possession as  they be by their original creation and they by no Act can be displace or  divest out of their original essence vide a   light b b a roll   b Inst Plowd  b b dyer pl   light a and h by car c and Geo c a estatepur autre vie be  devisable by a will in write sign by the devisor or by some other person and  in his presence and by his express direction attest and subscribe in the  presence of the devisor by three or more witness and if no such devise be make  it be Chargeable in the hand of the heir if it shall come to he by special  occupancy as asset by descent and in case there shall be no special occupant  it shall go to the executor or administrator and be asset in their hand Vid  Ripley v Waterworth Ves c I buist d Ant a   b cart e cart f Doctrin plan g    light a e guaranty Q if instead of the word discharge it shall not be exchange  note to former edition Vid   light a Com dig guaranty g coke report a er p  guaranty a collateral warranty shall not bar a title of dower for that  continue the essence accord to the original creation and yet for that a action  be give and therefore there be a difference between a collateral warranty and  a fine levy and five year pass coke a for upon a fine and five year pass all  the say title be bind and the title of a dower also if a action be not bring  within the time prescribe by the statute vide blow Com a