18th question of the student

Stud. If a man of his mere motion give lands to H. Hart, and to his heirs, by indenture, upon a condition, that he shall yearly, at a certain day, pay to John at Stile out of the same land a certain rent, and if he do not, that then it should be lawful to the said John at Stile to enter, etc., if the rent in this case be not payed to John at Stile, whether may the said John at Stile enter into the lands by conscience, though he may not enter by the law?

Doct. May he not enter in this case by the law, sith the words of the indenture be that he shall enter?

Stud. No, verily; for there is an ancient maxim in the law, that no man shall take advantage in a condition, but he that is party or privy to the condition; and this man is not party or privy, wherefore he shall have no advantage of it.

Doct. Though he can have no advantage of it as party, yet because it appeareth evidently that the intent of the giver was, that if he were not payed of the rent, that he should have the land, it seemeth that in conscience he ought to have it, though he can not have it by the law.

Stud. In many cases the intent of the party is void to all intents, if it be not grounded according to the law; and therefore if a man make a lease to another for term of life, and after of his mere motion he confirmeth his estate for term of life to remain after his death to another, and to his heirs; in this case that remainder is void in law and conscience: for by the law there can no remainder depend upon an estate, but that the same estate beginneth at the same time that the remainder doth; and in this case the estate began before, and the confirmation enlarged not his estate, nor gave him no new estate. But if a lease be made to a man for term of another man’s life, and after the lessor only of his mere motion confirmeth the land to the lessee for the term of his own life, the remainder over in fee; that is a good remainder in the law and conscience. And so methinketh the intent of the party shall not be regarded in this case.

Doct. And in the first case that thou hast put, methinketh though it pass not by way of remainder of that, yet shall it pass as by the way of grant of the reversion; for every deed shall be taken most strong against the grantor, and the taking of a deed in this case is an attornment in itself.

Stud. That cannot be, for he in the remainder is not party to the deed, and therefore it cannot be taken by the way of grant of the reversion; for no grant can be made but to him that is party to the deed, except it be by way of remainder. And therefore if a man make a lease for term of life, and after the lessor grant to a stranger that the tenant for term of life shall have the land to him, and to his heirs, that grant is void, if it be made only of his mere motion without recompence. And in like wise, if a man make a lease for term of life, and after grant the reversion to one for term of life, the remainder over in fee, and the tenant attorneth to him that hath the estate for term of life only, intending that he only should have advantage of the grant; his intent is void, and both shall take advantage thereof, and the attornment shall be taken good, according to the grant. And so in this case, though the feoffor intended, that if the rent were not payed, that the stranger should enter; yet because the law giveth him no entry in that case, that intent is void, and the same stranger shall neither enter into the land by law nor conscience.

Doct. What shall then be done with that land, as thou thinkest, after the condition broken ?

Stud. I think the feoffor in this case may lawfully reenter; for when the feoffment was made upon condition that the feoffee would pay a rent to a stranger, in those words is concluded in the law, that if the rent were not paid to the stranger, that the feoffor; should re-enter; for those words, upon condition, imply so much in the law, though it be not expressed. And then when the feoffor went farther, and said that if the rent were not paid, that the stranger should enter, those words were void in the law; and so the effect of the deed stood upon the first words, whereby the feoffor may re-enter in law and conscience: but if the first words had not been conditional, I would have holden it the greater doubt.

Doct. I pray thee put the case thereof in certain with such words as be not conditional, that I may the better perceive what thou meanest therein.