The Doctor and Student (1518)
Christopher St. Germain
The fourth question of the student whether conscience is ordered after the law
Stud. If a man enfeoff other in certain land upon condition, that if he enfeoff any other, that it may be lawful for the feoffor and his heirs to re-enter, etc., whether is this condition good in conscience, though it be void in the law?
Doct. What is the cause why this condition is void in law?
Stud. The cause is this, by the law it is incident to every state of fee-simple, that lie that hath the estate may lawfully by the law, and by the gift of the feoffor, make a feoffment thereof: and then when the feoffor restraineth him after that he shall make no feoffment to no man against his own former grant, and also against the purity of the state of a fee-simple, the law judgeth the condition to be void: but if the condition had been, that he should not have infeoffed such a man or such a man, that condition had been good, for yet he might infeoff other.
Doct. Though the said condition be against the effect of the state of a fee-simple, and also against the law; nevertheless it is not against the intent that the parties agreed upon, and that at the time of the livery. And forasmuch as the intent of the parties was, that if the feoffee infeoffed any man of the land, that the feoffor should enter, and to that intent the feoffee took the state, and after brake the intent: it seemeth that the land in conscience should return to the feoffor.
Stud. The intent of the parties in the laws of England is void in many cases: that is to say, if he be not ordered according to the law. And if a man of his mere motion, without any recompense, intending to give lands to another and to his heirs, make a deed unto him, whereby he giveth him those lands, to have and to hold to him for ever, intending that by the words for ever the feoffee should have the land to him and to his heirs; in this case his intent is void, and the other shall have the land only for term of life. Also, if a man give lands to another, and to his heirs for term of twenty years, intending that if the lessee die within the term, that then his heirs should enjoy the land during the term; in this case his intent is void, for by the law of the realm all chattels real and personal shall go to the executors, and not to the heir. Also, if a man give lands to a man and to his wife, and to a third person, intending that every of them should take the third part of the land as three common persons should, his intent is void; for the husband and the wife, as one person in the law, shall take only the one half, and the third person the other half. But these cases be always to be understood where the said estates be made without any recompense. And forasmuch as in this principal case the intent of the feoffor is grounded against the law, and that there is no recompence appointed for the feoffment, methinketh that the feoffor hath neither right to the land by law nor conscience: for if lie should have it by conscience, that conscience should be grounded upon the law of reason; and that it cannot, for conditions be not grounded upon the law of reason, but upon the maxims and customs of the realm; and therefore it might be ordained by statute, that all conditions made upon land should be void. And when a condition is void by the maxims of the law, it is as fully void to every intent, as if it were made void by statute: and so methinketh that in this case the feoffor hath no right to the land in law nor in conscience.
Doct. I am content thy opinion stand, till we shall have hereafter a better leisure to speak farther in this matter.