The Doctor and Student (1518)
Christopher St. Germain
The eleventh question of the student, as to damages a tenant in dower shall recover
Stud. A man seised of land in fee taketh a wife, and after alieneth the land, and dieth, after whose death his wife asketh her dower, and the alienee refuseth to assign it unto her, but after she asketh her dower again, and he assigneth it unto her: whether is the alienee in this case bound in conscience to give the woman damages for the profits of the land after her third part from the death of her husband, or from the first request of. her dower, or neither the one nor the other.
Doct. What is the law in this case?
Stud. By the law the woman shall recover no damages; for at the common law the demandant in a writ of dower should never have recovered damages; but by the statute of Merton, it is ordained, that where the husband dieth seised, that the woman shall recover damages, which is, understood the profits of the land sith the death of her husband, and such damages as she hath by the forbearing of it. But in this case the husband died not seised, wherefore she shall recover no damages by the law.
Doct. Yet the law is, that immediately after the death of her husband the wife ought of right to have her dower, if she ask it; though her husband die not seised.
Stud. That is true.
Doct. And sith she ought to have her dower from the death of her husband, it seemeth that she ought in conscience to have also the profits from the death of her husband, though she have no remedy to come to them by the law; for methinketh that this case is like to a case that thou puttest in our first dialogue in Latin, the seventeenth chapter. That if a tenant for term of life be disseised and dee, and the disseisor dieth, and his heir entereth and taketh the profits, and after he in the reversion recovereth the lands against the heir, as he ought to do by the law, that in that case he shall recover no damages by the law; and yet thou didst agree, that in that case the heir is bound in conscience to pay the damages to the demandant: and so methinketh in this case that the feoffee ought in conscience to pay the damages from the death of her husband, seeing that immediately after his death she ought to have her dower.
Stud. Though she ought to be indowed immediately after the death of her husband, yet she can lay no default in the feoffee till she demand her dower upon the ground, and that the tenant be not there to assign it, or if he be there, that he will not assign it; for he that hath the possession of land whereunto any woman hath title of dower, hath good authority as against her to take the profits till she require her dower; for every woman that demandeth dower affirmeth the possession of the tenant as against her: and therefore although she recover by acteon, she leaveth the reversion alway in him against whom she recovereth, though he be a disseisor, and bringeth not the reversion by her recovery to them that hath right, as other, tenants for term of life do. And for thes reason it is that the tenant in a writ of dower, where the husband deed seised, if he appear the first day, may say, to excuse himself of damages, that he is, and all times hath been ready to yield dower if it had been demanded; and so he shall not be received to do in a writ of coisnage, neither in the case that thou rememberest above: for in both cases the tenants be supposed by the writ to be wrong-doers, but it is not so in this case; and so methinketh it is quite clear that the feoffee in this case shall never be bound by law nor conscience to yield damages for the time that passed before the request, but for the time after the request is greater doubt; howbeit some think him there not bound to yield damages, because his title is good, as is said before, and that it is her default that she brought not her action.
Doct. As unto the time before the request I hold me content with thine opinion, so that he assign the dower when he is required: but when he refuseth to assign it, then I think him bound in conscience to yield damages for both times, though she shall none recover by the lave. And first, as for the time after the refusal, it appeareth evidently, that when he denied to assign her dower he did against conscience; for he did not that he ought to have done by the law, ne as he would should have been done to him: and so after the request he holdeth her dower from her wrongfully, and ought in conscience to yield damages therefore. And as to the default that thou assignest in her, that she took not her action, that forceth little; for actions need not but where the party will not do that he ought to do of right; and for that he ought of right to have done, and did it not, he can take no advantage. And then as to the damages before the request, methinketh him also bounden to pay them; for when he was required to assign dower, and refused, it appeareth that lie never intended to yield dower from the beginning, and so he is a wrong-doer in his own conscience. And moreover, if the husband die seised, the law is such, that if the tenant refuse to assign dower when lie is required, wherefore the woman bringeth a writ of dower against him, that in that case the woman shall recover damages as well for the time before the request as after; and yet he ought not in that case, after thine opinion, to have yielded any manner of damages, if lie had been ready to assign dower when it was demanded, as some think here.
Stud. The cause in the case that thou hast put is, for that the statute is general, that the demandant shall recover damages where the husband died seised, and. that statute hath been alway construed, that where the tenant may not say that he is and hath been ready alway to yield dower, etc., that the demandant shall recover damages from the death of her husband. But in that case there is no law of the realm that helpeth for the demandant, neither common law nor statute. And furthermore, though it might be proved by his refusal, that he never intended from the death of the husband to assign her dower; yet that proveth not but that he had good right to take the profits of her third part for the time, as well as he had of his own two parts, till request be made, as is aforesaid: and so methinketh that, notwithstanding the denial, he is not bound to yield damages in this case, but for the time of the request, and not for thee time before.
Doct. For this time I am content with thy reason.