Whittingham's Case

g co. hep. fib. whittingham's case 537 [42 b] whittingham's case. Hil. 45 Eliz. If there be lord and infant tenant, and the infant makes a feoffment in fee, and executes it by livery of seisin by his own hands, and afterwards dies without heir, the lord shall not take benefit of any escheat in that case. But if the feoffment be executed by letter of attorney, it is void, and the land shall escheat. Privies in blood shall take benefit of infancy. *Privies in estate (unless in some special cases) shall not take advantage of infancy.* *There is a difference between a title of entry by reason of a condition and a right of entry by reason of infancy. None shall take benefit of the infancy of his ancestor, but he who has a right descended to him from the same ancestor: but the heir may take benefit of a condition, although no right descends from the same ancestor.* *Privies in law shall never take benefit of infancy.* If the estate of the infant had been upon condition to be performed by the infant, and the condition had been broken during his minority, the land had been lost for ever. Note, *The differences between conditions in fact and conditions in law.* Note, *Thata condition in law by force of a statute which gives a recovery is stronger than a condition in law without a recovery.* The case in the Star-Chamber, Hil. 45 Eliz. was, that Richard Whittingham was seised of three messuages, &c. in Crayford, in the county of Kent, held of the Queen in soeage, as of the manor of Newberry in Crayford in fee; and by his will in writing devised them to Prudence, his bastard daughter, and her heirs, and died. Prudence being within age of 21 years, by deed, as was pretended, did enfeoff Stephens and others of the said tenements in fee, and died within age without issue; and whether this feoffment should prevent the Queen of her escheat was the question. And on consideration had with the two Chief Justices, it was resolved, that if there be lord and (a) infant-tenant, and the infant makes a feoffment in fee, and executes it by livery of seisin by his own hands, and afterwards dies without heir, that the lord should not take benefit of any escheat in that case (a). And as to that, it is to be known, that there are three manner of (a) privities; sal. privity in blood ; privity in estate; and privity in law. Privies in blood are meant privies in blood inheritable, and that is in three manners, sc. inheritable as general heir ; inheritable as special heir; and inheritable as general, and special heir. Privies in estate are, as joint-tenants, husband and wife, donor and donee, lessor and lessee, &c. Privies in law are, when the law, without blood or privity of estate, casts the land upon one, or makes his entry lawful; as the lord by escheat, the lord who enters for mortmain, the lord of a villain, &c. And, first, privies (b) inheritable, as general heir, shall take benefit of infancy; and therefore if an infant, tenant in fee-simple, makes a feoffment and dies, his heir shall enter. [43 a] The same law of him who is heir general and special. As if a man gives land to one and the heirs male of his body, and the donee within age makes a feoffment in fee, his son, who is heir general (a) Dyer 10. pi. 38. 4 Co. 125 a. 7 Co. 7 b. Post. 45 a. 2 Inst. 483. 49 E. 3. 13 a. 39 H. 6. 42 b. 7 H. 5. 9 b. 3 Bulst. 272. (a) Recog. aec. per the Lord Keeper, Burgess v. Wheate, The Attorney-General v. Wheute, 1 Eden. 243. in which case the Lord Keeper observed, "The law seems to have had no regard to the tenant's right to the land, but only to his right of seisin ; and therefore in every case where the tenant was seised de jure, no escheat could happen on the death of that...