The Doctor and Student (1518)
Christopher St. Germain
The diversity between the cases discussed in chapters twenty and twenty-one
Stud. The first case of the said two cases is this. A man maketh a feoffment by a deed indented, upon a condition that the feoffee shall pay certain rent yearly to a stranger, etc., and if he pay it not, that it shall be lawful to the stranger to enter into the land. In this case, I said before in the loth chapter, that the stranger might not enter, because that he was not privy unto the condition. But I said, that in that case the feoffor might lawfully re-enter by the first words of the indenture, because they imply a condition in the law, and that the other words, that is to say, that the stranger should enter, be void in law and conscience. And therefore I said farther that when the feoffor had re-entered, that he was seised of the land to his own use, and not to the use of the stranger, though his intent at the making of the feoffment were, that the stranger, after his entry, should have had the land to his own use, if he might have entered by the law. And the cause why I think that the feoffor was seised in that case to his own use, I shall shew thee afterward. The second case is this; a man maketh a feoffment in fee, and it is agreed upon the feoffment, that the feof or shall pay a yearly rent to a stranger, and if he pay it not, that then the stranger shall enter into the land. In this case I said, as it appeareth in the said twenty-first chapter, that if the feoffor paid not the rent, that the stranger should have the use of the land, though he may not by the rules of the law enter into the land. And the diversity between the cases methinketh to be this. In the first case it appeareth, as I have said before in the said twentieth chapter, that the feoffor might lawfully re-enter by the law for not payment of rent; and then when he entered according, lie by that entry avoided the first livery of seisin, insomuch that after the re-entry he was seised of the land of like estate as he was before the feoffmen; and so remaineth nothing whereupon the stranger might ground his use, but only the bare grant or intent of the feoffor, when he gave the land to the feoffee upon condition that he should pay the rent to the stranger, and if not, that it should be lawful to the stranger to enter: for the feoffment is avoided by the re-entry of the feoffor, as I have said before: and as I said in the last chapter, as I suppose, a nude or bare grant of him that is seised of land is not sufficient to begin an use upon.
Doct. A bare grant may change an use, as thou thyself agreed in the last chapter: why then may not an use as well begin upon a bare grant?
Stud. When a use is in esse, he that hath the use may of his mere motion give it away, if he will, without recompence, as he might the land, if he had it in possession but I take it for a ground, that he cannot so begin an use without livery of seisin, or upon a recompence or bargain. And that there is such a ground in the law, that it may not so begin, it appeareth thus. It hath been alway holden for law, that if a man make a deed of feoffment to another, and deliver the deed to him as his deed, that in this case he to whom the deed is delivered hath no title ne meddling with the land afore livery of seisin be made to him, but only that he may enter and occupy the land at the will of the feoffor. And there is no book saith that the feoffee in that case is seised thereof, before livery to the use of the feoffee. And in like wise, if a man make a deed of feoffment of two acres of land that lie in two shires, intending to give them to the feoffee, and maketh livery of seisin in the one shire, and not in the other: in this case it is commonly holden in books, that the deed is void to the acre, where no livery is made, except it lie within that view, save only that he may enter and occupy at will, as is aforesaid: and there is no book that saith that the feoffee should have the use of the other acre; for if an use passed thereby, then were not the deed void unto all intents; and yet it appeareth by the words of the deed, that the feoffor gave the lands to the feoffee, but for lack of livery of seisin the gift was void: and so methinketh it is here, without livery of seisin be made according. But in the second case of the said two cases, the feoffor may not re-enter for non-payment of the rent, and so the first livery of seisin continueth and standeth in effect; and thereupon the first use may well begin and take effect in the stranger of the land, when the rent is not paid unto him according to the first agreement. Arid so methinketh that in the first case the use is determined, because the livery of seisin whereupon it commenced is determined and that in the second case the use of the land taketh effect in the stranger for not payment of the rent by the grant made at the first livery, which yet continueth in his effect: and this methinketh is the diversity between the cases.
Doct. Yet, notwithstanding the reason that thou hast made, methinketh that if a man seised of lands make a gift thereof by a nude promise, without any livery of seisin, or recompence to him made, and grant that he shall be seised to his use, that though the promise be void in law, that yet nevertheless it must hold and stand good in conscience, and by the law of reason. For one rule of the law of reason is, That we may do nothing against the truth: and sith the truth is, that the owner of the ground hath granted that he shall be seised to the use of the other, that grant must needs stand in effect, or else there is no truth in the grantor.
Stud. It is not against the truth of the grantor in this case, though by the grant he be not seised to the use of the other; but it proveth that he hath granted that the law will not warrant him to grant, wherefore his grant is void. But if the grantor had gone farther and said, That lie would also suffer the other to take the profits of the lands without lett or other interruption, or that he would make him estate in the land when he should be required: then I think in those cases he were bound in conscience, by that rule of thy, law of reason that thou hast remembered, to perform them, if he intend to be bounden by his promise for else he should go against his own truth, and against his own promise. But yet it shall make no use in that case, nor he to whom the promise is made shall have no action in the law upon that promise, though it be not performed: for it is. called in the law a nude, or naked promise. And thus, methinketh, that in the first case of the said two cases, the grant is now avoided in the law by the re-entry of the feoffor, and that the feoffor is not bounden by his grant, neither in law nor conscience: but in that second case he is bound, so that the use passeth from him, as I have said before.
Doct. I hold -me content with thy conceit for this time, but I pray thee shew me somewhat more at large what is taken for a nude contract, or naked promise, in the laws of England, and where an action may lie thereupon, and where not.
Stud. I will with good-will say as methinketh therein.