19th question of the student

Stud. A man maketh a feoffment by deed indented, and by the same deed it is agreed, that the feoffee shall pay to A. B. and to his heirs, a certain rent yearly at certain days, and that if he pay not the rent, their it is agreed that A. B. or his heirs, shall enter into the land; and after the feoffee payeth not the rent; then the question is, who ought in conscience to have this land and rent?

Doct. Ere we argue what conscience will, let us know first what the law will therein.

Stud. I think that by the law neither the feoffor ne yet the said A. B. shall ever enter into the land in this case for non-payment of the rent, for there is no re-entry in this case given to the feoffor for not payment of the rent, as there is in the case next before, and the entry that is given to the said A. B. for not payment thereof is void in the law, because he is estrange to the deed, as it appeareth also in the next chapter before. And therefore methinketh that the greatest doubt in this case is, to see what use this feoffment shall be taken.

Doct. There appeareth in this case as thou hast put it, no consideration ne recompence given to the feoffor, whereupon any use may be derived; and if the case be so indeed, and the feoffor declared never his mind therein, to what use shall it then be taken?

Stud. I think it shall be taken to be to the use of the feoffee, as long as he payeth the rent: for there is no reason why the feoffee should be busied with payment of the rent, having, nothing for his labour: ne it may not conveniently be taken that the intent of the feoffor was so, except he expressed it; and then it must be taken that he intended to recompence the feoffee for the business that he should have in the payment over, and by the words following his intent it appeareth to be so, as methinketh; for if the rent were not payed, he would that A. B. should enter, and so it seemeth he intended not to have any use himself. And thus, me seemeth, this case should vary from the common case of uses; that is to say, if a man seised of land make a feoffment thereof, and it appeareth not to what use the feoffment was made, ne it is not upon any bargain or other recompence, then it shall be, taken to be to the use of the feoffor; except the contrary can be proved by some bargain, or other like: or that his intent at the time of the delivery of seisin was, expressed that it should be to the use of the feoffee, or of some other; and then it shall go according to his intent: but in this case methinketh it shall be taken that his intent was, that it should first be to the use of the feoffee, for the cause before rehearsed, except the contrary can be proved; and so that knowledge of the entent of the feoffor is the greatest certainty for knowledge of the use en this case, as me seemeth. But when the feoffor goeth farther, and saith, That if the rent be not paid, that then the said A. B. should enter into the land; then it appeareth that his intent was that the rent should cease, and that A. B. should enter into the land: and though he may not by those words enter into the land after the rules of the law, and to have freehold, yet those words seem to be sufficient to prove that the intent of the feoffor was that he should have the use of the land: for sith he had the rent to his own use, and not to the use of the feoffor; so it seemeth he shall have the use of the land that is assigned to him for the payment of the rent.

Doct. But I am somewhat in doubt, whether he had the rent to his own use: for the intent of the feoffor might be, that he should pay the rent for him to some other, or some other use might be appointed thereof by the feoffor.

Stud. If such an intent can be proved, then the intent must be observed; but we be in this case to wit to what use it shall be taken, if the intent of the feoffor cannot be proved: and then methinketh it cannot be otherwise taken, but it shall be to the use of him to whom it should be paid. For though it be called a rent, yet it is no rent in law, ne in the law he shall never have remedy for it, though it were assigned to him, and to his heirs, without condition, neither by distress, by assise, by writ of annuity, nor otherwise; but he shall be driven to sue in the Chancery for his remedy: and then when he sueth in the Chancery, he must surmise that he ought to have it by conscience, and that he can have no remedy for it in the law. And then, sith he hath no remedy to come to it but by the way of conscience, it seemeth it shall be taken that when he hath recovered it, that he ought to have it in conscience, and that to his own use, without the contrary can be proved: and if the contrary can be proved, and that the intent of the feoffor was, that he should dispose it for them as he should appoint, then hath he the rent in use to another use, and so one use should be depending upon another use; which is seldom seen, and shall not be intended till it be proved: and so, sith no matter is here expressed, methinketh the rent shall be taken to be to the use of him that it is paid to, and the land in like wise that is appointed to him for not payment of the said rent shall be also to his use: how thinkest thou will conscience serve therein?

Doct. I think that as thou takest the law now, that conscience (in this case) and the law be all one for the law seercheth the same thing in this case, to know the, case that conscience doth, that is to say, the intent of the feoffor. And therefore I would move thee farther in one thing.

Stud. What is that?

Doct. That sith the intent of the feoffor shall be so much regarded in this case, why et ought not also to be as much regarded in the case that is in the last chapter next before this, where the words be conditional, and give the feoffor a title to re-enter. For methinketh, that though the feoffor may in that case re-enter for the condition broken, that yet after this entry he shall he seised of the land after his entry to the use of him to whom the land was assigned by the said indenture for lack of payment of the rent, because the intent of the feoffor shall be taken to be so in that case as well as in this. And I pray thee let me know thy mind what diversity thou puttest between them.

Stud. Thou drivest me now to a narrow diversity, but yet I will answer thee therein as well as I can.

Doct. But first, ere thou shew me that diversity, I pray thee shew me how uses began, and why so much land hath been put in use in this realm as hath been.

Stud. I will with good-will say as methinketh therein.