The Doctor and Student (1518)

Christopher St. Germain

Whether a gift made under a condition be void, if the sovereign break the condition

Stud. In summa rosella, in the title alienatio, the 12th article, is asked this question, Whether a gift made under a certain form may be voided or revoked, because the prelate or sovereign only did break the form? And it is there answered, That it may not, for that the deed of the prelate only sought not to hurt the church: and if those words (under a manner) be understood of a gift upon condition, as they seem to be, then the said solution holdeth not in this realm neither in the law nor conscience.

Doct. What is then the law of England if a man infeoff an abbot by deed indented, upon condition that if the abbot pay not to the feoffor a certain sum of money at such a day, that then it shall be lawful to the feoffor to re-enter, and at that day the abbot faileth of his payment; may the feoffor lawfully re-enter, and put out the abbot?

Stud. Yes, verily, for he has no right to the land but by the gift of the feoffor, and his gift was conditional; and therefore if the condition be broken, it is lawful by the law of England for the feoffor to re-enter and to take his land again, and to hold as in his first estate: by which re-entry after the laws of the realm, he disproveth the first livery of seisin, and all the mesne acts done between the first feoffment and the re-entry. And it forceth little in the law, in whom the default be that the condition was not performed, whether in the abbot, or in his covent, or in both, or in any other person whatsoever he be, except it be in the feoffor himself And it is great diversity between a clear gift made to an abbot without condition, and where it is made with condition: for when it is made without condition, the act of the abbot only shall not by the Common law disherit the house, but it be in very few cases. But yet upon divers statutes the sufferance of the abbot only may disherit the house, as by his cesser, or by levying a cross upon a house against the statute thereof made, in which case the house thereby shall leese the land: and some say that by the Common law upon his disclaimer in avowry a writ of right of disclaimer lieth. But if the gift be upon condition, it standeth neither with law nor conscience that the abbot should have any more perfect or sure estate than was given unto him: and therefore as the said estate was made to the house upon condition, so that estate may be avoided for not performing of the condition. And I think verily, that this I have said is to be holden in this realm both in the law and conscience, and that the decrees of the church to the contrary bind not in this case. But if the lands be given to an abbot, and to his covent, to the intent to find a lamp, or to give certain alms to poor men; though the intent be not in these cases fulfilled, yet the feoffor nor his heir may not re-enter; for he reserved no re-entry by express words: ne in the words, when he said, to the intent to find a lamp, or to give alms, etc., is implied no re-entry: he the feoffor nor his heirs shall have no remedy in such cases, unless it be within the case of the statute of Westminster the second, that giveth the Cessavit de Cantaria.