15th question of the student

Stud. A man granteth a rent-charge out of two acres of land, and after the grantor enfeoffeth H. H. in one of the said two acres to the use of the said H. H. and of his heirs, and after the said H. Hart, intending to extinct all the rent causeth the said acre to be recovered against him to his own use in a writ of Entry in le post, in the name of the grantee, and of others, after the common course, the grantee not knowing of it, and by force of the said recovery the other demandants enter, and die living the grantee, so that the grantor is seised of all by the survivor to the use of the said H. H., whether is the said rent extinct in conscience in part or in all, or no part?

Doct. I am in doubt of the law in this case.

Stud. In what point?

Doct. Whether the whole rent be going out of the acre that remaineth in the hands of the grantor, because the grantee cometh to the land by way of recovery; or that it shall be extinct in law but after the portion, because the grantee hath not the acre to his own use; or that the whole rent shall be extinct in the law?

Stud. The rent cannot be whole going out of the acre that the grantor hath: for this recovery is upon a feigned title; and the grantor, because he is a stranger to it, shall be well received to falsify it. But if the recovery had been upon a true title, then it had been as thou sayest; if the grantee recover the one acre against the grantor upon the true title, the grantor shall pay the whole rent out of the land that remaineth in his hands. And as to the use, it maketh no matter to the grantor, as to the law, in whom the use be; for the possession without the use extinguisheth the whole rent as against him, in the law, as well as if the possession and use were both joined together in the grantee.

Doct. Then methinketh that the said Henry Hart is bound in conscience to pay the grantee the rent after the porteon of that acre that was recovered; for it cannot stand with conscience that he should lose his rent, and have no profits of the land?

Stud. Then of whom shall he have the other portion of his rent?

Doct. Is the law clear, that the acre that the grantor hath shall be in this case discharged in the law?

Stud. I take the law so.

Doct. And what in conscience?

Stud. As against the grantor, methinketh also it is extinct in conscience, for the reason that thou hast made in the sixteenth chapter. For it is all one in conscience in this case as against the grantor, whether the recovery were to the use of the grantee or not, especially seeing that the grantor is not privy to the recovery: for the unity of possession is the cause of extinguishment of the rent against the grantor, both in law and conscience, wheresoever the use be. But if the grantor hath been privy to the cause of the extinguishment, as he was in the case that I put in the last chapter, where the grantor enfeoffed the grantee of one of the acres to the use of the grantee; there it is not extenct in conscience in that acre that remaineth in the hands of the grantor, though it be extincted in the law, because he was privy to the extinguishment himself: but lie is not in this case, and therefore it is extinct against him in law and conscience. And therefore methinketh that the grantee shall in conscience have the whole rent of the said Henry Hart, that causeth the said recovery to be had in his name, for in him was all the default. But it is to be understood, that in all the cases where it is said before in this chapter, or in the chapter next before, that the rent is extinct in the law, and not in conscience, that in such case all the remedies that the party might first have had for the rent at the Common law by distress, assise, or otherwise, are determined, and the party that ought to have the rent in conscience shall be driven to sue for his remedy by subpoena.

Doct. I am content with thy conceit in this matter for this time.