cccxlv man and andrews case devise use suspend yet the land devise a  contingent shall hinder the execution of a estate in possession estate vest  shall not be divest in ejection strong the jury find by special verdict that  Richard heart and Katherine his wife and diverse other person h be seize of  the land in question to the use of Richard and his heir ad per implend ultimam  volunt dict rich who the first of August h by his will in write devise that  his feoff shall be from thenceforth seize to the use of his say wife for her  life and after to the use of W h his son for his life without impeachment of  waste and after the death of the say Katherine his wife William his son and  Joan wife of the say William his feoff shall be seize to the use of the next  heir of the body of the say William and Joan lawful beget for the term of the  life of the same heir Leonard and after the decease of the same heir to the  use of the next heir of the same heir lawful beget and for default of such  issue to the use of the heir of the body of the say William and Joan lawful  beget for the term of life or life of every such heir or heir and for default  of such heir to the use of the heir of the body of the say William and for  default c to the right heir of William and further he will that if any of the  say heir shall set alien lie to mortgage the right title and interest which  they or any of they shall have in or out of the same land or by their consent  or assent suffer any recovery to he have against they c or do any other act  whereby they or their heir or any of they may or ought to be disinherit that  then the use limit to such heir so do shall be void and of no effect during  his life and that his say feoff shall be thenceforth seize to the use of the  heir apparent of such offender as though he be dead Richard heart die William  have issue by the say Joan his wife a son name Thomas and die and afterward h  Joan die Katherine die Thomas enter and have issue Francis and Percival Thomas  by deed indent I August Elizabeth bargain and sell to Andrews and levy a ne to  he with warranty and afterward Elizabeth Francis levy a fine to the say  Andrews sur conusans de law come Ceo and further by the say fine release to he  with warranty at the time of which fine levy Percival be heir apparent to the  say Francis Francis after have issue and f who be now live the heir of the  survivor of the feoff within five year after the age of Percival and seven  year after the fine levy enter to revive the use limit to Percival who enter  and lease to the plaintiff this case be argue by the justice of the king bench  c first it be agree by the Leonard er p whole court that Richard heart be  seize with seven other unto the use of himself and his heir may well devise  all the use although his use be in part suspend because he be joint seize with  seven other to his own use and so the use for the eight part suspend for when  this devise be to take effect I e at the time of his death all the possession  of the land by the survivor passes from the use and then the use be withdraw  from the possession shall well pass and by Wray a use suspend may be devise as  if feoff to use before the statute of h be seize by which seize the use be  suspend and afterward during the seize beneficiary and use by his will devise  that his feoff shall reenter and then make a estate to I S in fee the same be  a good devise for by that seize the trust and confidence repose by beneficiary  and use in the feoff be not suspend second it be hold that here a use imply be  limit to Joan the wife of William although there be not any express devise of  it accord to the book of h three when a use be limit to the heir of the body  of William and Joan lawful beget for life and afterward to the heir of the  body of the same heir for life c geofry justice be of opinion that here be in  effect a estate tail for the estate limit be direct to go in course of a  estate tail for he will that every heir of the body of his son shall have the  land and the special word shall not make another estate to pass but that which  the law will as if land be give to one for life the remainder after his death  to the heir of his body lawful beget notwithstanding that the word of the  limitation imply two several estate yet because the law so will it be but one  estate gawdy justice say that every issue beget betwixt William and Joan shall  have a estate for life successive and a remainder in tail expectant as right  heir of the body of William and this estate tail shall not be execute in  possession by reason of the mesne remainder for life limit to the heir of the  body of William and Joan and although that these mesne remainder be but upon a  contingent and not in be yet such regard shall he have to they that Leonard  they shall hinder the execution of the estate for life and in tail in  possession as if a estate be make to a for life the remainder to the right  heir of b in tail the remainder in fee to a although the estate tail be in  abeyance and not in be during the life of b yet in respect thereof the  freehold and fee shall not be conjoin Southcote justice to the same purpose  and he put a case late adjudge betwixt Vaughan and Alcock land be devise to  two man and if any of they die his heir shall inherit these devisees be tenant  in common because in by devise but contrary if it be by way of grant land be  devise to a and b to he betwixt they divide they be tenant in common Wray  William and Thomas have but for life for they be purchaser by the name heir in  the singular number but when he go further and say for want of such issue to  the heir of the body of William in the plural number now will have a  inheritance and if a devise be make to one for life and then to his heir for  life and so from heir to heir in continuous for life here be two estate for  life and the other devisees have fee for estate for life can be limit by  general word from heir to heir but by special word they may and here Thomas be  next heir of the body of William and Joan have a estate for life and also be  heir of the body of the say William have a remainder in tail to he limit the  mesn remain limit to other I e to the next heir of the body of Thomas be in  abeyance because limit by the name heir his father be alive shall not hinder  the execution of these estate but they shall remain in force accord to the  rule of the commonlaw then Thomas so be seize levy a fine against the  provision of the will by which Thomas have forfeit his estate for life and so  his next heir shall have the land during his life and a great reason wherefore  the heir ut above after the two first limitation shall have tail be because  that if every heir shall have but for life they shall never have any interest  in the land by these limitation for by the express word of the devise none  shall take but the heir of the first heir for ever I e when Thomas alien by  which the use vest in Francis and when afterward Francis levie a fine then the  use vest in Percival heart be next heir of the say Francis at the time of the  fine levy notwithstanding that afterward Francis have a son which be his next  heir and therefore the use in Percival by the birth of the say son in Francis  shall not be divest because it be a thing vest in he before by purchase h a  feoff b upon condition on the part of a to be perform Leonard er p and die  have issue a daughter the daughter perform the condition and afterward a son  be bear the daughter shall hold the land against the son so e a woman have  issue a daughter and afterward consent to a ravisher the daughter enter and  afterward a son be bear yet the daughter shall hold the land for ever I e and  Geofries justice say Francis be in by force of the forfeiture shall not be  subject to the limitation of the will I e to any forfeiture if he alien for  the estate which Francis have for his life be but a estate gain by the offence  of big father and the use be limit to he upon the will of Richard and then the  say estate be not subject to the proviso of the will and then have not Francis  commit any forfeiture and admit Francis shall forfeit yet Percival shall get  nothing thereby but the estate which Francis have at the time of the fine levy  sure the freehold only for no estate of inheritance be in he live his father  as to the regress of the feoff Geofries be of opinion that where a use be  limit to a person certain and thereupon vest in the person to who it be limit  that the entry of the feoff in such case be not requisite notwithstanding that  the first estate be discontinue but where the use as in our case be not limit  to a person certain in be but be in abeyance not vest in any person upon the  limitation of it some estate ought to be leave in the feoff to maintain that  use and to render it accord to the limitation Leonard and in our case these  use not in be at the time of the make of the statute of h can not be execute  by the say statute but now at the appoint time by the limitation shall be  raise and revive by the entry of the feoff but here by the fine and nonclaim  the feoff be bind and their entry take away and so no use can accrue to  Percival heart by such entry Southcote justice be of opinion that the feoff  can enter at all because that by the statute of h nothing be leave in they at  the time of the make of the statute which save the right of every person c  other than the feoff so as no right be save to they but all be draw out of  they by the operation of the statute and the second save of the statute save  to the feoff all their former right so as the right which the feoff have by  the feoff to the use be utter go but Percival heart may well enter for he be  not bind to the five year after the fine levy for he have not right at the  time of the fine levy but his right come by the fine Wray chief justice the  feoff be not to enter for the statute of h have two branch give the possession  to beneficiary and use in such manner as he have in the use take away all the  right out of the feoff and give it to beneficiary and use so as nothing at all  remain in the feoff for if a Act of parliament will give to I all the land  whereof my brother Southcote be seize and that I shall be in the seize thereof  now be the actual possession in I without my entry so where a use be often  execute by the statute beneficiary and use without any entry have a actual  possession I as to the use contingent nothing remain in the feoff for the set  of they when they happen but the whole estate be settle in beneficiary and use  yet subject to such use and be shall render the same upon contingency and if  any estate shall remain in the feoff it can be but a estate for life for the  feesimple be execute in beneficiary and use with a estate in possession and  then the feoff shall be seize to another use than be give they by the livery  also if a feoff be make unto the use of the feoff and his heir until I S have  pay unto the feoff from thenceforth the feoff and his heir shall be seize to  the use of the say I S and his heir if upon such feoff any thing shall remain  in the feoff before the payment by I S the same shall be a feesimple and then  there shall be two feesimples of one and the same land one in the feoff and  the other in the feoff which shall be absurd and therefore the best way to  avoid such inconvenience be to continue the statute that it draw the whole  estate of the land and also the confidence out of the feoff and repose it upon  the land the which by the operation of the statute shall render the use to  every person in his time accord to the limitation of the party and also if any  interest do remain in the feoff then if they convey to any person upon  consideration who have not notice of the use then the say use shall never rise  which be utter against the meaning of the say statute and the meaning of the  party and therefore to construe the statute to leave nothing in the feoff will  prevent all such mischief and if a feoff in fee be make to the use of the  feoff for life and afterward to the use of his wife which shall be for life  and after Leonard er p ware to the use of the right heir of the feoff the  feoff feoff a stranger take a wife now can the feoff enter during the life of  the feoff and after his death they can enter because they can not enter when  the use to the wife be to begin upon the intermarriage and then if the entry  of the feoff in such case shall be requisite the use limit to the wife by the  act of the feoff shall be destroy against his own limitation which be strong  against the meaning of the act aforesaid for by the say act the land be credit  with the say use which shall never fail in the performance of it and such  contingent estate in remainder may be limit Leonard in possession a strong in  use which see e Colthirsts case and Plesingtons ease r and it be true at the  commonlaw the entry of the feoff be requisite because the wrong be do unto  they by reason of the possession which they then have but now by the statute  all be draw out of they and then there be no reason that they meddle with the  land wherein they have now nothing to do and the scope of the statute be utter  to disable the feoff to do any thing in prejudice of the use limit so as the  feoff be not to any purpose but as a pipe to convey the land to other so as  they can by their release or confirmation c bind the use which be to grow and  arise by the limitation knit unto the feoff make unto they which see Br h  feoff to use a covenant with b that when a shall be feoff by b of three acre  of land in d that then the say a and his heir shall be seize of land of the  say a in S to the use of b and his heir and afterward a feoff a stranger of  his land in S and afterward b feoff a of his land in d now the feoff of a  shall be seize to the use of b notwithstanding that the say feoff have not  notice of the use for land be bind with the use in who hand soever it come and  see the like case ibidem I man upon the reason of which case many assurance  have be make for it be the common manner of mortgage I e if the mortgagor pay  such a sum c that then the mortgagee and his heir shall be seize after such  payment to the use of the mortgagor and his heir in that casealthough that the  mortgagee alien yet upon the payment the use shall rise well enough out of the  possession of the alienees and the land shall be in the mortgagor without any  entry for the mortgagee can not enter against his own alienation to revive the  use which be to rise upon the payment and therefore without any assistance of  such entry it shall arise as at the commonlaw land be give to a in tail the  remainder to the right heir of b a levy a fine make a feoff suffer a recovery  c although the same shall bind the issue yet if b die and afterward a die  without issue now notwithstanding this fine c the right heir of b may enter  and always a use shall spring out of the land at his due opportunity and it be  a collateral charge which bind the land by the first liberty and can be  discharge way ass e Isabel Goodcheapes case a man devise that his executor  shall sell his land and afterward die without heir so as the land escheat to  the king yet the authority give to the executor shall bind the land in who  hand soever it come c and so a title of entry continue notwithstanding twenty  alienation but a use be a less thing than a title of entry especial a use in  contingency and a use as long as it be in contingency can be forfeit as if the  mortgagor be attaint and pardon mean betwixt the mortgage and the day of  redemption c then when Thomas levy a fine Francis may well enter and Thomas  before the fine have a estate tail execute to his freehold and therefore by  the fine he give a estate of inheritance to the conusee and then no right of  entail remain in Francis but he take a estate for life only and that as a  purchaser by the limitation of the will and then when Francis levy a fine his  estate be go which be but for life and then the right of the entail and all  the other estate which be especial limit be also go and so Percival heart to  who no estate be special limit have not any cause to enter c and it be further  say by Wray husband and wife tenant in special tail the husband levy a fine  with proclamation and die the wife enter the issue in tail be bar but if the  wife enter after the death of her husband and before the proclamation pass the  issue be not bind by the fine and if tenant in tail grant totum position and  after levie a fine thereof with proclamation come Ceo c the issue be bar  contrary where the fine be upon a release c Len more Rep   Rep cro Leonard er  p Leonard Elizabeth in the king bench