| 1367.030 |
1367 |
Common Pleas |
Formedon in the remainder |
Formedon
Brief |
| Pasch. |
41 |
Edw. 3 |
10 |
11b-12a |
Belknap, Robert Sjt (for D)
Meres, Roger de (alias Kirkton) Sjt Kirton (for P)
Belkap, Robert Sjt
Meres, Roger de (alias Kirkton) Sjt Kirton
Belknap, Robert Sjt
Thorp, Robert de CJCP Thorpe
Belknap, Robert Sjt
Thorp, Robert de CJCP Thorpe
Meres, Roger de (alias Kirkton) Sjt Kirton
Thorp, Robert de CJCP Thorpe
Meres, Roger de (alias Kirkton) Sjt Kirton
Fyncheden, William de JCP FInchden
Meres, Roger de (alias Kirkton) Sjt Kirton
Fyncheden, William de JCP Finchden
Meres, Roger de (alias Kirkton) Sjt Kirton |
Richard |
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John, donor
William, plaintiff's ancestor, donee in tail
Thomas, remainderman in tail, plaintiff's ancestor, defendant's alleged feoffor
Edith, life tenant
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| Fitzherbert Briefe 534 & 542 |
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| En un briefe de Formedon en le remainder, le demaundant counta, coment un John dona certeine terre a |
41 |
| In a writ of Formedon in the remainder, the demandant (plaintiff) counted how one John had given certain land to one W., his ancestor, and to the heirs of his body, and for default of issue the remainder to one Thomas and the heirs of his body, and for default of issue the remainder to one Richard, now demandant (plaintiff), and to the heirs of his body, and he said that the remainder should be to him because W. and T. were dead without heir of their bodies. The defendant said that by the deed it was proven that John had part of the lands in demesne, and one Edith held part for a term of life, the reversion to John, and he said that all the lands demanded were in the seisin of Edith at the time of the making (confession) of this deed except one acre, so the plaintiff should have another writ of another form; judgment of the writ. And as to this acre, the defendant said that Thomas, the plaintiff's ancestor, had enfeoffed him thereof with warranty; judgment if the plaintiff should have an action. As to that which the defendant said, that Edith was seised, the plaintiff said that she was not seised; ready etc. The defendant said that this was not an issue, because he had pleaded in abatement of the writ, to which the plaintiff should reply and plead in the affirmative, that is, that John was seised, and not traverse the defendant's statement in the negative, so that the defendant did not understand that the plaintiff should be received to such averment. The plaintiff said that the defendant (Nous) had pleaded a matter outside, which was not comprised in the writ, to which the plaintiff would have an answer. The defendant said that the plaintiff would not have an answer except to maintain his writ, as if the defendant alleged joint tenancy with John, the plaintiff would not say that John had nothing, but he would maintain his writ, that the defendant was sole tenant; also here. Thorp CJCP said that when the defendant pleaded a matter outside, it was necessary that the plaintiff have an answer to this, and he could not have a more proper answer than to traverse that which the defendant had said; therefore he asked the defendant if he would accept the averment. The defendant said that if the Court awarded the writ good, he was ready to answer. Thorp CJCP said that if the defendant refused the averment for that reason, perhaps the plaintiff would have seisin of the land. Then the defendant, as to the two parts, pleaded the warranty of the plaintiff's ancestor, and as to the third part, he held to the plea in abatement of the writ. The plaintiff said that it was not a plea in abatement of the writ, because even if Edith had been seised at the time of the making (confection) of the deed, still his writ was good, because if William, to whom the remainder was entailed after the death of Edith, was seised by the fee tail, the writ was good enough, and the defendant had not said that he was not seised, so that it seemed that the writ was good. Thorp CJCP told the plaintiff that if his matter was such, he should show that himself, because this should come from him. The plaintiff said that if the defendant's plea was not a plea, then he did not need to answer, and if the remainder of certain tenements was entailed to his ancestor in fee tail, if his ancestor was seised by the remainder, he would have a writ of Formedon in the descender, and if he was not seised, then a Formedon in the remainder, also here, if W. was seised, then the gift was executed. Fyncheden JCP fully granted this, but he said that this would come from the plaintiff, that is, that he was seised. The plaintiff said, as to the acre where the defendant pleaded the warranty of the plaintiff's ancestor, that the same Thomas was the same person to whom the remainder was entailed before in fee tail, and he had issue, who was alive after his death, who had nothing by descent, so that he was not barrable, nor consequently the plaintiff, since he only demanded fee tail by force of the remainder. Fyncheden JCP said that the warranty was at the common law, and whether he had issue or not was not to the purpose. The plaintiff acknowledged the exception in abatement of the writ. Therefore, in right of this, the writ abated, and they were adjourned as to the rest. |
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