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The Doctor and Student (1518)
Christopher St. Germain
How uses of land first began, and by what law
Stud. Uses were reserved by a secondary conclusion of the law of reason in this manner: When the general custom of property, whereby every man knew his own goods from his neighbours, was brought in among the people, it followeth of reason, that such lands and goods as a man had, ought not to bee taken from him but by his assent, or by order of the law: and then sith it be so, that every man that hath lands hath hereby two things in him, that is to say, the possession of the land, which after the law of England is called the frank-tenement, or the freehold, and the other is authority to take thereby the profits of the land; wherefore it followeth, that he that hath land, and intendeth to give only the possession and freehold thereof to another, and keep the profits to himself, ought in reason and conscience to have the profits, seeing there is no law made to prohibit, but that in conscience such reservation may be made. And so when a man maketh a feoffment to another, and intendeth that he himself shall take the profits; then the feoffee is said seised to his use that so enfeoffed him, that is to say, to the use that he shall have the possesseon and freehold thereof, as in the law; to the intent that the feoffor shall take the profits. And under this manner, as I suppose, uses of land first began.
Doct. It seemeth that the reserving of such use is prohibited by the law: for if a man make a feoffment, and reserve the profits, or any part of the profit, as the grass, wood, or such other; that reservation is void in the law and methinketh it is all one to say, that the law judgeth such a thing, if it be done, to be void, and that the law prohibiteth that the thing shall not be done.
Stud. Truth it is, that such reservation is void in the law, as thou sayest: and that is by reason of a maxim in the law, that willeth that such reservation of part of the same thing shall be judged void in the law. But yet the law doth not prohibit that no such reservation shall be made, but if it be made it judgeth of what effect it shall be; that is to say, that it shall be void; and so he that maketh such reservation offendeth no law thereby, ne breaketh no law thereby, and therefore the reservation in conscience is good. But if it were prohibit by statute that no man should make such a reservation, ne that no feoffment of trust should be made, but that all the feoffments should be to the use of him to whom possession of the land is given; then the reservation of such uses against the statute should be void, because it were against the law: and yet such a statute should not be a statute against reason, because such uses were first grounded and reserved by the law of reason; but it should prevent the law of reason, and should put away the consideration whereupon the law of reason was grounded before the statute made. And then to the other question, that is to say, why so much land hath been put in use? It will be somewhat long, and peradventure to some tedious, to shew all the causes particularly: but the very cause why the” use remained to the feoffor, notwithstanding his own feoffment or fine, and sometime notwithstanding a recovery against him, is all upon one consideration after the cause and intent of the gift, fine or recovery, as is aforesaid.
Doct. Though reason may serve that upon a feoffment a use may be reserved to the feoffor by the intent of the feoffor against the form of his gift, as thou hast said before; yet I marvel much how an use may be reserved against a. fine, that is one of the highest records that is in the law, and is taken in the law of so high effect, that it should make an end of all strifes; or against a recovery, that is ordained in the law for them that be wronged to recover their right by. And methinketh, that great inconvenience and hurt may follow, when such records may so lightly be avoided by a secret intent or use of the parties, and by a nude and bare averment and matter in deed, and specially sith such a matter in deed may be alledged that is not true, whereby may rise great strife between the parties, and great confusion and uncertainty in the law. But nevertheless, sith our intent is not at this time to treat of that matter, I pray thee touch shortly some of the causes why there hath been so many persons put in estate of lands to the use of others as there have been; for, as I hear say, few men be sole seised of their own land.
Stud. There have been many causes thereof, of the which some be put away by divers statutes, and some remain yet. Wherefore thou shalt understand, that some have put their land in feoffment secretly, to the intent that they that have right to the land should not know against whom to bring their action, and that is somewhat remedied by divers statutes that give actions against pernors and takers of the profits. And sometime such feoffments of trust have been made to have maintenance and bearing of their feofees, which peradventure were great lords or rulers in the country: and therefore to put away such maintenance, treble damages be given by statute against them that make such feoffments for maintenance. And sometime they were made to the use of mortmain, which might then be made without forfeiture, though it were prohibited that the freehold might not be given in mortmain; but that is put away by the statute of R. 2. And sometime they were made to defraud the lords of wards, reliefs, heriots, and of the lands of their villeins: but those points be put away by divers statutes made in the time of king H. the 7th. Sometime they were made to avoid executions upon a statute-staple, statute-merchant, and recognisance: and remedy is provided for that, that a matt shall have execution of all such lands as any person is seised of to the use of him that is so bound at the time of execution sued, in the 19th year of H. 7. And yet remain feoffments, fines, and recoveries in use for many other causes, in manner as many as there did before the said statute. And one cause why they be yet thus used is, to put away tenancy by the courtesy and titles of dower. Another cause is, for that the lands in use shall not be put, in execution upon a statute-staple, statute-merchant, nor recognisance, but such as be in the hands of the recognisor at the time of the execution sued. And sometime lands be put in use, that they should not be put in execution upon a writ of extendi facias ad valentiam. And sometime such uses be made that he to whose use, etc., may declare his will thereon: and sometime for surety of divers covenants. in indentures of marriage and other bargains. And these two last articles be the chief and principal cause why so much land is put in use. Also lands in use be not assets neither in a Formedon, nor in an action of debt against the heir: ne they shall not be put in execution by an elegit sued upon a recovery, as some men say. And these be the very chief causes, as I now remember, why so much land standeth en use as there cloth: and all the said uses be reserved by the intent of the parties understood or agreed between them, and that many times directly against the words of the feoffment, fine, or recovery: and that is done by the law of reason, as is aforesaid.
Doct. May not a use be assigned to a stranger as well as to be reserved to the feoffor, if the feoffor so appointed it upon his feoffment?
Stud. Yes, as well, and in like wise to the feoffee, and upon that a free gift, without any bargain or recompence, if the feoffor so will.
Doct. What if no feoffment he made, but that a man grant to his feoffee, that from henceforth lie shall stand seised to his own use? Is not that use changed, though there be no recompence?
Stud. I think yes, for there was an use in esse before the gift, which he might as lawfully give away, as he might the land if he had it in possession.
Doct. And what if a man being seised of land in fee, grant to another of his mere motion, without bargain or recompence, that he from thenceforth shall be seised to the use of the other; is not that grant good?
Stud. I suppose that it is not good; for, as I take the law, a man cannot commence an use but by livery of seisin,, or upon a bargain, or some other recompence.
Doct. I hold me contented with that thou hast said in this chapter for this time; and I pray thee shew me what diversity thou puttest between those two cases that thou hast before rehearsed in the loth chapter, and in the, 21st chapter of this present book.
Stud. I will with good-will.