The Doctor and Student (1518)

Christopher St. Germain

The second question of the student concerning tailed lands

If a tenant in tail suffer a recovery against him of his lands entailed, to the intent that the recoverer shall stand seized thereof to the use of a certain woman whom he intendeth to take to his wife, for term of life, and after to the use of the first tail, and after he marrieth the same woman whether standeth that recovery with conscience, though other recoveries upon bargains and sales did not.

Doct. It seemeth yes; for though the statute be, that they to whom the tenements be so given should not have power to alien, but that the lands after their death should remain to their issues, or revert to the donors if the issues failed: yet if he to whom the lands were so given take a wife, and dieth seized without heir of his body, and the donor enter, the woman shall recover against him the third part, to hold in the name of her dowry for term of her life, though the tail be determined. And the same law is of tenant by the courtesy, that is to say, of him that happeneth to marry one that is an inheritrix of the land entailed, and they have issue; the wife dieth, and the issue dieth; he shall have the lands for term of his life as tenant by the courtesy, notwithstanding the words of the statute, which say, that after the death of the tenant in tail without issue, the lands shall revert to the donor; and I think the cause is, because the intent of the statute shall not be taken that it intended to put away such tithes as the law should give by reason of the tail; and so it seemeth that a like intent of the statute shall be so taken for jointures, for else the statute might be sometime a letting of matrimony, and it is not like that the statute intended so. And therefore it seemeth, that by the only deed of the tenant in tail a jointure may be made by the intent of the statute, though the words of the statute serve not expressly for it; for many times the intent of the letter shall be taken, and not the bare letter; as it appeareth in the same statute, where it is said, that he to whom the lands be given shall have no power to alien; yet the same statute is construed, that neither lie nor the heirs of his body shall have no power to alien: and so methinketh that such an intent shall be taken here for saving of jointures.

Stud. Truth it is, that sometime the intent of a statute shall be taken farther than the express letter stretcheth; but yet there may no intent be taken against the express words of the statute, for that should be rather an interpretation of the statute, than an exposition: and it cannot be reasonably taken, but that the intent of the makers of the said statute was, that the land should remain continually in the heirs of the tail, as long as the tail endureth; and there can no jointure be made neither by deed nor by recovery, but that the tail must thereby be discontinued. And therefore this case of jointure is not like to the said cases of tenant in dower, or tenant by the courtesy. For the title of dowry and of tenancy by the courtesy groweth most specially by the continuance of the possession in the heirs of the tail, but it is not so of jointures: and therefore by the only deed of the tenant in the tail, there may no jointures be lawfully made against the express words of the statute. And if there be any made by way of recovery, then it seemeth that it must be put under the same rule as other recoveries must be of lands entailed.