The Doctor and Student (1518)

Christopher St. Germain

The fourth question of the student concerning recoveries of inheritances entailed

Stud. If an annuity be granted to a man, to have and to perceive to the grantee, and to the heirs of his body, of the coffers of his grantor, and after the grantee suffereth a recovery against him in a writ of Entry by the name of a rent in Dale of a like sum as the annuity is of, with vouchers and judgment, after the common course, and both parties intend that the annuity shall be recovered: whether shall the recovery bind the heir in tail of his annuity?

Doct. What if it were a rent going out of land, of what effect should the recovery be then?

Stud. It should be then of like effect as if it were of land.

Doct. And so it seemeth to be of this annuity; for, as me thinketh, a rent and annuity be of one effect; for the one of them shall be paid in ready money, as the other shall.

Stud. Truth, and yet there be many great diversities betwixt them in the law.

Doct. I pray you shew me some of these diversities.

Stud. Part I shall shew thee, but I wot not whether I can shew thee all. But first thou shalt understand, that one diversity is this: Every rent, be it rent-service, rent-charge, or rent-seck, is going out of land, but chargeth only the person, that is to say, the grantor, or his heirs that have assets by discent, or the house, if it be granted by a house of religion to perceive of their coffers. Also of an annuity there lieth no action, but only a writ of Annuity, against the grantor, his heirs or successors: and that a writ of Annuity lieth never against the pernor, but only against the grantor or his heirs. But of a rent the same action may lie as cloth of land, as the case requireth: and it lieth sometime of rent against the pernor of the rent, that is to say, against him that taketh the rent wrongfully, and sometime against neither, as of a rent-service Assise may lie for the lord against the mesne and the disseisor, or sometime against the mesne only, if he did also the disseisin. Also an annuity is never taken for assets, because it is no freehold in the law, ne it shall not be put in execution upon a statute-merchant, statute-staple, ne Elegit, as a rent may. And because the said writ of Entry lay not in this case of this annuity, and that it cannot be intended in the law to be the same annuity, though it be of like sum with the annuity, ne though the parties assented and meant to have the same annuity recovered by the said writ of Entry; therefore the said recovery is void in law and conscience. But if such a recovery be had of rent with the voucher over, then it shall be taken to be of like effect as recoveries of lands be, in such manner as we have treated of before.