The Doctor and Student (1518)
Christopher St. Germain
The third question of the student concerning tailed lands
If John at Noke, being seised of land in fee, of his mere motion makes a feoffment of certain lands to the intent that the feoffees shall thereof make a gift to the said John at Noke, to have to him and to the heirs of his body, and they make the gift according; and after the said John at Noke falleth into debt, wherefore he is taken and put in prison, and thereupon for payment of his debts lie selleth the same land, and for surety of the buyer he suffereth a recovery to be had against him in such a manner as before appeareth whether standeth that recovery with conscience or not?
Doct. I would here make a little digression to ask thee another question, or that I make answer to thine; that is to say, to feel thy mind how the law by the which the body of the debtor shall be taken and cast into prison, there to remain till he have paid the debt, may stand with conscience, specially if lie have nothing to pay it with; for as it seemeth if he will relinquish his goods, which in some laws is called in Latin, Cedere bonis, that he shall not be imprisoned; and that is to be understood most specially, if he be fallen into poverty, and not through his own default.
Stud. There is no law in the realm that the defendant may in any case Cedere bonis, and, as me seemeth, if there were such a law, it should not be indifferent; for as to the knowledge of him that the money is owing to, the debtor might Cedere bonis, that is to say, relinquish his goods, and yet retain to himself secretly great riches. And therefore that law in such case seemeth more indifferent and righteous, that committeth such a debtor to the conscience of the plaintiff to whom the money is owing, than the committing him to the conscience of him that is the debtor; for in the debtor some default may be assigned; but in him to whom the money is owing may be assigned no default.
Doct. But if he to whom the debt is owing knoweth that the debtor hath nothing to pay the debt with, and that he is fallen into poverty by some casualty, and not through his own default; doth the law of England hold that he may with good conscience keep the debtor still in prison till he be paid?
Stud. Nay verily, but it thinketh more reasonable to appoint the liberty and the judgment of conscience in that case to the debtee than to the debtor, for the cause before rehearsed. And then the debtee, if he knew the truth, is (as thou hast said) bound in conscience to let him go at liberty, though he be not compellable thereto by the law. And therefore, admitting it for this time, that the law of England in this point is good and just, I pray thee that thou, wilt make answer to my question.
Doct. I will with good-will and therefore, as me seemeth, forasmuch as it appeareth that the said gift was made of the mere liberty and free-will of the said John at Noke, and without any recompence, that therefore it cannot be otherwise taken, but that the intent of the said John at Noke, as well at the time of the said feoffment, as at the time that he received again the said gift in the tail, was, that if he happened afterwards to fall into poverty, that he might alien the said land to relieve him with: for how may it be thought that a man will so much ponder the wealth of his heir, that he will forget himself? And so it seemeth, that not only the said recovery standeth with conscience, but also if he had made only a feoffment of the land, the feoffment should be in conscience a good bar of the tail: but if the said feoffment and gift had been made in; consideration of any recompence of money, or for any matrimony, or such other, then the feoffment of the said John at Noke should not bind his heir, and if he then suffered any recovery thereof, then the recovery should be of like effect as other recoveries whereof we have treated before, and that which I said, it was good to favour rather for their multitude, than for the conscience. And the same law is, that if the son and the heir of the said John at Noke, in case that the said gift was made without recompence, alien the land for poverty after the death of his father; the recovery bindeth not but as other recoveries do. For it cannot be thought that the intent of the father was, that any of his heirs in tail should for any necessity disherit all other heirs in tail that should come after him, but for himself, methinketh, it is reasonable to judge in such manner as I have said before.
Stud. And though the intent of the said John at Noke, when he made the said feoffment, and when he took again the said gift in tail, were, that if he fell in need, that he might alien: yet I suppose that he may not alien, though percase for the more surety he declared his intent to be such upon the livery of seisin: for that intent was contrary to the gift that he freely took upon him; and when any intent or condition is declared or reserved against the state that any man maketh or excepteth, then such an intent or condition is void by the law, as by a case that hereafter followeth will appear: that is to say, If a man make a feoffment in fee, upon condition that the feoffee shall not alien to any man, that condition is void; for it is incident to every state of the fee-simple, that he that is so seised may alien. And like as in a fee-simple there is incident a power to alien, so in a state-tail, there is a secret intent understood in the gift, that no alienation shall be made. And therefore though the intent of the said John at Noke were, that if he fell into poverty, that lie might sell, and though he at the taking of the gift openly declared his intent to be so: yet the intent should be void by the law, as me seemeth; and if it be void by the law, it is also void in conscience; and so the said recovery must be taken in this case to be of the same effect, as recoveries of other lands entailed be, and in no other manner.