The Doctor and Student (1518)
Christopher St. Germain
The fourteenth question of the student, whether rents be extinct in conscience
Stud. A rent is granted to a man in fee to perceive of two acres of land, and after the grantor enfeoffeth the grantee of one of the said acres; whether is the whole rent extinct thereby in conscience, as it is in the law?
Doct. This case is somewhat uncertain: for it appeareth not whether the grantor enfeoffed him on trust, or that he gave the acre to him of his mere motion to the use of the said feoffee; or else that the feoffment was made upon a bargain: and if it were but only a feoffment of trust, then I think the whole rent abideth in conscience, though it be extincted in law. And first, That it continueth in that case in conscience for the part that the grantee hath to the use of the grantor, it is evident, for he may take the profits of the land, and it is against conscience that he should leese both. And in like wise it abideth in conscience for the acre that remaineth in the hands of the grantor, though it be extinct in the law: for there was a default in the grantor that he would make a feoffment to the grantee, as well as there was in the grantee, to take it; and it is no conscience that of his own default he should take so great avail, to be discharged of the whole rent, seeing that the feoffment was made to his own use. And if the feoffment were made upon a bargain, and a contract between them, then it is to see whether they remembered the rent in their bargain, or that they remembered it not; and if they remembered it in their bargain and contract, then conscience must follow the bargain: and thus, If they agreed that the grantee should have the rent after the porteon in the other acre, then by conscience lie ought to have it, though it be extincted in the law; and if they agreed that the whole rent should be extinct, and made their price according, then it is extinct in law and conscience; and if they clearly forgot it, and made no mention of it ,or for lack of cunning, took the law to be that it should continue in the other acre after the portion, and made their price according, pondering only the value of the acre that was sold, then methinketh it doth continue in conscience after the portion; and if the feoffment were made to the use of the grantee, then it seemeth the whole rent is extinct in law and conscience.
Stud. Then take this to be the case, that is to say, that the feoffment was made to the use of the grantee.
Doct. What is thine opinion therein?
Stud. Then the rent should abide in conscience after the portion of the acre remaining in the hands of the grantor, notwithstanding it be extinct in the law.
Doct. Then shew me thine opinion in this that I shall ask thee: Of what law is it, that grants of rent, and of such other profits out of lands may be made, and that they shall be good and effectual to the grantees? Whether it be by the law of reason, or by the law of God, or by the custom and law of the realm?
Stud. I think it is by the law of reason: for by the same by by reason that a man may give away all his lands, he may, as it seemeth, give away the profits thereof, or grant a rent out of the land, if he will.
Doct. But then by what law is it that a man may give away his lands? I trove by none other law but by the custom of the realm; for by statute all alienations and grants of lands may be prohibited; and then that reason proveth not that grants of the profits of land, or of a rent, should be good, because he may alien the land, if alienation of land be by custom, and not by the law of reason, as I suppose it is, whereof I have touched somewhat in our first dialogue in Latin, the nineteenth chapter. And also if grants should have their effect by the law of reason, then reason would they should be good by the only word of the grantor, as well as by his deed; and that is not so, for without deed the grant of rent is void in law; and so methinketh, that grants have their effects only by the law of the realm.
Stud. Admit it be so, what meanest thou thereby?
Doct. I shall shew thee hereafter, as I shall shew thee the cause why I think the rent is extinct in conscience as well as in law. And first, as I take it, the reason why it is extinct in the law, is because the rent by the first grant was going out of both acres, and was not going part out of the one acre, and part out of the other, but the whole rent was going out of both; and then when the grantee of his own folly will take estate in the one acre, whereby that acre be discharged, then the other acre also must be discharged, unless it should be apportioned; and the law will not that any apportionment should be in that case; but rather insomuch as the party hath by his own act descharged the one acre, the law discharged also the other, rather than to suffer the other acre to be charged contrary to the form of the grant: for this rent beginneth all by the act of the party; and, as I have heard, it is called, A rent against common right. Wherefore it is not favoured in the law, as a rent-services: and then methinketh, that forasmuch as it is not grounded by the law of reason, that grants of rent should be made out of land, but by custom and law of the realm, as I have said before, that so in like wise it remaineth to the law and custom of the realm to determine how long such rents shall continue. And when the law judgeth such rent to be void, I suppose that so doth conscience also, except the judgment of the law be against the law of reason, or the law of God, as it is hot in this case. For in this case, he that taketh the feoffment hath profit by the feoffment, and knoweth that he hath such a rent out of the land, and that this purchase should extinct it, whereby it appeareth that he assented unto the law, whereto he was not compelled, and that is his own act, and his own default so to do, which shall extinct his whole rent as well in conscience as in law. But if he have no profit of the land, or be ignorant that he hath such a rent out of the land, which is called ignorance of the deed, or if he be ignorant that the law would extinct his whole rent thereby, which is called Ignorance of the law, then methinketh it remaineth in conscience after the portion.
Stud. Ignorance of the law, or of the deed, helpeth not but in few cases in the law of England.
Doct. And therefore it must be reformed by conscience, that is to say, by the law of reason. For when the general maxims of the law be in any particular cases against the law of reason, as this maxim seemeth to be, because it excepteth not them that be ignorant, though it be an ignorance invincible; then doth it not agree with the law of reason.
Stud. Methinketh that ignorance in this case helpeth little. For when a man buyeth any land, or taketh it of the gift of any other, he taketh it at his peril, so that if the title be no good, ignorance cannot help, for the buyer must beware what he buyeth: and so in this case, if the taking of an acre should extinct the whole rent in conscience, if he were not ignorant, so methinketh it should in like wise extinct it also, though he be ignorant of the law, or of the deed; for every man must be compelled to take notice of his own title, and out of what land his rent is going, and so methinketh ignorance is but little to be considered in this case.
Doct. If a man buy land, or taketh it of the gift of another, it is reason that he take it with the peril, though he be ignorant that another hath right; for it were not standing with reason that his ignorance should extinct the right of another: but in this case there is no doubt of the right of the land, but all the doubt is how the rent shall be ordered in conscience, if he that hath the rent take part of the land; and therein is great diversity between him that is ignorant in the law, and him that knoweth the law, and knoweth well also that he hath a rent out of the land, and other. For I put case, he asked counsel of the grantor himself therein, and he saying as he thought, told him, that the taking of the one acre should not extinct the rent but for the portion, and so he thinking the law to be, took thee other acre of his gift: is it not reasonable in that case, that the ignorance should save the rent in conscience?
Stud. Yes, for there the grantor himself is party to his ignorance, and in manner the cause thereof.
Doct. And methinketh all is one if any other had shewed him so, or if he asked no counsel at all; for methinketh it sufficeth in this case that he be ignorant of the law: for why? it is more hard in this case to prove the rent should. be extinct in conscience, tho he knew it should be extinct in the law, than to prove that it continueth in conscience after the portion, if he be ignorant; and thou thyself wert of the same opinion, as it appeareth in the beginning of this present chapter. But if the opinion were true, it would be hard to prove but that the said general maxim were wholly against reason, and then it were void. But I have sufficiently answered thereto, as me seemeth, and that it is extinct in the law, and also in conscience, except ignorance help it to be apportioned. And moreover, forasmuch as apportionment is suffered in the law, where part of the land descendeth to the, grantee, because no default can be assigned in him: some think no default can be assigned in him in conscience, when he is ignorant of the law, or of the deed, though such ignorance do not excuse in the law of the realm.
Stud. I am content with thy opinion in his behalf at this time.