5th question of the student

If lands be given to a man and to his wife, in the name of her jointure, by the father of the husband, to have and to hold to them, and to the heirs of their two bodies begotten, and after they have issue, and the husband dieth, and the wife alieneth the land, and against the statute of II H. 7, suffereth a recovery thereof to be had against her, to the use of the buyer, and after her son and heir apparent, that is heir to the tail, releaseth to the recoverers by fine, and dieth, having a brother alive, and after the mother dieth; who hath right to the land, the buyer, or the brother of him that releaseth?

Doct. What is thine opinion therein? I pray thee shew me.

Stud. Me seemeth that the buyer hath right; for by the said statute made in the 11th year of H. 7, among other things it is enacted, that if any woman which hath lands of the gift of her husband, or of the gift of any of the ancestors of her husband, suffer any recovery thereof against her by covin, that then such recovery shall be void, and that it shall be lawful to him that should have the land after the death of the woman to enter, and it to hold as in his first right: provided alway that that statute shall not extend where he that should have the land after the death of the woman is agreeable to any such alienation or recovery, so that the agreement be of record. And forasmuch as the heir in this case agreed to the said recovery and fine, which is one of the highest records in the law, it seemeth that the buyer hath right against that heir that agreed, and against all that shall be heir of the tail; and that not only by the said recovery, but also by the said statute, whereby the said recovery, with assent of the heir is affirmed.

Doct. Though the buyer in this case have right during the life of the heir that released, yet nevertheless after his death his heir, as it seemeth, may lawfully enter: for the agreement whereof the statute speaketh, must, as I suppose, either be had before the recovery, or else at the time of the recovery. For if a title by reason of the said statute be once devolute to the heir in the tail, then the right, as me seemeth, cannot be extinct, nor pug away by the only fine of the heir, no more than if he had died, and the next heir to him had released go the buyer by fine, in which case the release could not extinct the right of the title, nor the right of entry that is given by the statute; and so, as me seemeth, his next heir may therefore enter.

Stud. As I perceive, all thy doubt is in this case, because the assent of the heir was after the recovery; for if it had been at the time of the recovery, as if the heir had been vouched go warrant in the same recovery, and he had entered, and thereupon the judgment had been given, thou agreest well, that the recovery should have avoided the tail for ever.

Doct. That is true, for it is in express words of the statute; but when the assent is after the recovery, then methinketh it is not so, ne that the right of the first tail, which was revived by the said statute, shall not be extinct by his fine, no more than it shall in other tail.

Stud. I will be advised upon thy opinion in this matter; but yet one thing would I move farther upon this statute, and that is this: Some say, that by this statute all other recoveries that have been had over beside these recoveries of jointures be affirmed; for they say, that sigh the parliament, at the making of this statute, knew well that many other recoveries were then used and had to defeat tails, that it was like that they would so continue, which nevertheless the parliament did not prohibit for the time to come, as it did the said recoveries of jointures; that it is therefore to suppose, that they thought that they should stand with law and conscience: but because jointures were made rather for the saving of the inheritance of the husband than go destroy the inheritance, they say that the parliament thought and adjudged the alienations and recoveries of such jointures to be against the law and conscience, and not the alienations of other lands entailed; for if they had, they say that the parliament would have avoided recoveries of tailed lands generally, as well as it did of recoveries of jointures.

Doct. As to that opinion I will answer thee thus for this time: That though that the makers of the said statute only put away recoveries of jointures, and not other recoveries; that yet it cannot be taken therefore that their intent was that the other recoveries should stand good and perfect; for they spake then only of jointures, because there was no complaint made in the parliament at that time but against recoveries had of jointures, and therefore it seemeth that they intended nothing concerning other recoveries, but that they should be of the same effect as they were before, and no otherwise. And that will appear more plainly thus Though the makers of the said statute intended to put away and annul such recoveries, as should be made of jointures after a certain day limited in the statute, that yet they intended not to avoid ne affirm such recoveries of jointures as were passed before that time; and if they intended not to avoid ne affirm the recoveries had of jointures before that time, then how can it be taken that they intended to put away or affirm other recoveries that were passed before that time, and not of jointures, that would not affirm, ne put away recoveries passed of jointures before that time? And so, as it seemeth, they intended to spare the multitude of them that were passed of both, and not to comfort any to take them after that time.

Stud. I am content thy opinion stand for this time, and, I will ask thee another question.