case Hemsley against price Hilary term Elizabeth roll a devise be make of land  in socage and in capite which by Henry c be void as to a three part the  devifsee enter general into all the land lease they all and the lessee enjoy  they entire for three year the entry let and enjoyment gain a possession for  the two pa ts only and do not deprive the heir of his three part I roll Abr Ro  ab burr Ejectionefirmce of a lease of Gabriel Armstrong upon a special verdict  the case be that Henry Stapleton be seize in fee of the manor of Rempstone and  of the advowson of Rempstone in fee the manor be hold in socage and the  advowson by knizht service in capite devise all his land to Elizaheth his wife  foy her life remainder to faith his daughter in tail remainder to the old son  of William his brother in tail remainder to his cousin William Stapleton in  tail with diverse remainder over remainder to the right heir of Henry the  devisor Henry die Elizaheth enter and let we all the say land to Jackson who  occupy they entire for three year faith die without issue Elizaheth die John  Stapleton son and heir of William Stapleton enter and that Gertrude Yeo be  cousin and heir to faith and that she levy a fine to Gabriel Armstrong of the  manor of Rempstone which Gabriel Armstrong by deed enrol in chancery bargain  and sell the land to Edward Turvile for life remainder to the queen in fee  upon condition if he pay S to Edward Turvile during his life or after his  death to the queen or her successor at the receipt of the exchequer that the  bargain and sale sliould he void and that the say Gabriel Armstrong may  reenter and they further find that Gabriel Armstrong pay the S to Edward  Turvile and enter and demise three acre to the plaintiff who enter and that  the defendant by the command of I Stapleton eject he out of the three acre el  si upon all this matter c the first point be if this devise be void for a  three part so as the devisee ought to have have but two part and the three  part have descend the devisee enter general and let all and the lessee occupy  all whether this shall gain the session of the croak Elizabeth entire and  divest it out of the heir so as at the time of the fine levy he have not any  thing and so nothing pass thereby to Gabriel Armstrong the lessor?Secondly  admit the fine be good for the three part when Gabriel Armstrong bargain and  sell it to Edward Turvile for life remainder to the queen in fee upon  condition c whether by the payment of the S to Edward Turvile it shall divest  the whole estate or no part thereof without office or to point out de  droit?Coke attorneygeneral and crew for the plaintiff that by none of these  act the heir be out of possession but that his fine be good for first by the  devise the heir be to he tenant in common with the devisee and if one tenant  in common enter into the entire land his possession shall he adjudge the  possession of his companion also and he shall not he put out of possession and  crew say that in Elizabeth in the common plea in pollard v Allcock this point  be in question and rule that where croak Elizabeth er p the devisee enter into  the whole and the heir without entry levy a fine of his three part to a  stranger it be good for it never be out of his possession and if the entry do  not gain the possession tliie lease for year do not alter it for nothing pass  thereby but what may lawful pass no more than in Henry pl where a tenant in  common levy a fine of the whole land the moiety only pass for he can not gain  the entire possession but if he have actual expel his companion it have be a  seize in deed or if he have make a feoff or a lease for life of the entire  land it have be a seize of the whole and it have all pass and when at first he  enter general the law will not impute any tort therein but that he enter as  lawful as he may and he can afterward by allywords divest his companion  possession but coke say that I f afterward he have make a feoff of the entire  that have express his first intent to he to enter into the entire and to give  possession of the whole as to the second point they hold that by this payment  the entire estate be divest without office for when the freehold be in a  common person and the remainder only in the queen by the limitation of the  party and not by any settle interest it may well he divest out of the queen by  matter of fact and in many case by matter in law as in Nichols case Plowden by  a condition perform for the increase I of the estate so there fol by a  remitter so if a seize make a lease for life remainder to the queen yet the  disseizee may enter or have a assize against the tenant for life and thereby  divest the estate from the queen and as the estate commence by the act of the  party so by his act it may be defeat and Edward pl be that if one devisethat  his executor shall sell his land and die without heir the land shall escheat  to the king yet the executor may sell and thereby divest it out of the king  wherefore c Tanfield and Geo croak on the other side this enter general  although he claim not the whole by express word yet enter by force of the  devise which be of the whole be and amount to a express claim of the whole and  where two have title descend unto they as coparceners or a title devolve or  come to two as tenant in common if the one enter first and claim all before  the other have croak Elizabeth enter that shall gain the possession of the  entire estate but if they be once in possession then the claim of the one only  or the occupy of the one only shall not oust his companion and therefore Litt  if the one coparcener enter claim the entirety and make a feoff with warranty  that be a lineal warranty for the one moiety and collateral for the other and  if the feoff he a seize and not before it shall then he a warranty commence by  seize so ass where the one coparcener enter claim the whole and a stranger  enter she sole shall have a assize I and here the case be strong for the heir  and devisee do not claim by one title and therefore the entry of the one shall  not he a entry for the other especial where the devisee pretend that he have  the entire and the other do not contradict it for otherwise great mischief  will ensue for if the devisee continue diverse year and after die seize and a  descent be cast and his heir enter into the whole and levy a fine with  proclamation and so more fine or descent if it shall not be good for the whole  after but a long possession he draw in question and the fine avoid without  claim it will he very mischievous that by a sleep tenure the devise shall he  avoid for a three part and the purchaser disturhed and to that purpose be cite  Heignolds v Kingman a where in such a case the devisee enter into the entirety  and make a feoff of the entire house with letter of attorney the question be  whether the entire or but two part of the house pass and it be hold that the  entire although that in the same case the devise be void for a three part by  reason of the tenure c yet the devisee enter into the whole have thereb gain  the possession of the whole and the whole entirety pass and as to the second  point it be move that the queen estate can be defeat without matter of record  and that shall privilege the estate for life for there can be a fraction in  estate for he who enter for a condition ought to reduce tl e entire estate and  not part thereof and to confirm that the yearbook of Henry pl and Cholmley  case in the exchequer b be cite where it be hold that by the payment of a sum  in the country without office the queen estate can a ante b   to croak  Elizabeth er p not he defeat and that shall privile e the estate for life that  it shall not he defeat wherefore c but all the court except Fenner as to the  first point resolve that this entry and lease do not gain any possession but  of the two part and the heir be never out of possession thereof and so his  fine good second they all except gawdy hold that by the performance of the  condition the entry be lawful upon the tenant for life and the franktenement  be defeat the queen estate be defeat for she be the person against who the  freehold be demandable and recoverable but if the queen have have the  immediate estate it have be otherwise Popham deny the law to he so in Cholmley  case and that some of the baron deny it he deny also that the law be so as it  be cite in reignolds case unless that the word be of all the house then he say  all have pass wherefore for the matter they resolve for the plaintiff and give  day to the defendant to show other cause otherwise croak Elizabeth judgement  shall he enter for the plaintiff at which day it be more Edward n arrest of  judgement that the verdict be imperfect first because it be not find that  Gehrude from who the plaintiff claim be heir to Henry Stapleton the devisor  but to faith and it may be that she be heir to faith the daughter of the  devisor for a verdict ought to be full and perfect and it may he although  faith be the daughter the devisor may have a son or that she be heir to he by  a second wife and a verdict ought to have so great certainty that no apparent  intendment can he against it and if it he false that a attaint may he bring  and to that purpose the case of price v John be cite to he rule in this court  accord second because it be foundi that the devise be to Elizaheth for life  remainder to faith v la prout in ultimd v oluntate I sius p Henrici a pparet  pron  interrog  tenor sequitur in hcee word wherein be mention that the devise  be make to the son of will Stapleton but it be not so find by the jury three  because the ejection firmce be bring of acre of land and the jury find the  defendant quoad all except three acre parcel property prodictor not guilty et  quoad the three acre they find all the matter ut above and that Gabriel  Armstrong let the aforesaid three acre to the plaintiff and that he be possess  and that the defendant eject he out of the three acre parcel property pro  speaker and that they do not find the ejectment of the aforesaid three acre  let c and it may he that the ejectment be of the other three acre and for this  last cause the whole court hold it to he ill but to the two other exception  they speak not much wherefore a venire facias de to make new be award and at  the trial the matter be compound michaelmas term Elizabeth in the common plea  sir Edmund Anderson Knt chief justice Thomas Walmsley Esq Thomas Owen Esq John  Glanville Esq justice sir Edward coke Knt attorneygeneral sir Thomas Fleming  Knt solicitor general