The Doctor and Student (1518)

Christopher St. Germain

Whether a covenant made upon a gift to the church, that it not be aliened, be good

In the said sum, called summa rosella, the said title alienatio, the 13th article, is asked this question, Whether a covenant made upon a gift to the church, that it shall not be aliened, be good? And the same question is moved again in the said summa called rosella, in the title conduito, the first article, and in summa angelica, in the title donatio-prima, the fifty-first and fifty-second articles. And the intent of the question the reis, Whether notwithstanding that the condition be good to some alienations, whether that yet it be good to restrain alienations for the redemption of them that be in captivity under the infidels, or for the greater advantage of the house? And though the better opinion be there, that the condition may not be broken for redemption of them that be in captivity; yet it is in manner a whole opinion that it may be sold for the greater advantage to the house; for it is said there, that it may not be taken but that the intent of the giver was so; and therefore they call the condition that prohibiteth it to be sold conditio turpis, that is to say, a vile condition; wherefore they regard it not. But verily, as I take it, if a condition may restrain ,any manner of alienations, then it shall as well restrain alienations for the two causes before rehearsed, as for any other causes; and though methinketh that the condition is good, and after the law of the realm, that upon gifts to the church alienation is restrained; yet I shall touch one reason that is made to the contrary, that is this: There is a clear ground in the law, that if a feoffment be made to a common person in fee, upon condition that the feoffee shall not alien to no man; that condition is void, because it is contrary to the estate of a fee-simple, to bind him that hath the estate that he should not alien if he list; And some say that an abbot that hath lands to him and to his successors, hath as high and as perfect a fee-simple as hath a layman that hath land to him and to his heirs; and therefore they say, that it is as well against the law of the realm to prohibit that the abbot shall not alien, as it is to prohibit a layman thereof. And though it be therein true as they say, as to the highness of the estate, yet methinketh there is a great diversity between the cases concerning their alienations. For when lands be given in fee-simple to a common person, the intent of the law is that the feoffee shall have power to alien, and if he do alien, it is not against the intent of the law, ne yet against the intent of the feoffor: but when lands be given to an abbot and to his successors, the intent of the law is, and also of the giver, (as it is to presume) that it should remain in the house for ever; and therefore it is called Mortmain, that is to say, a dead hand, as who saith, that it shall abide there alway as a thing dead to the house. And therefore, as I suppose, the law will suffer that condition to be good, that is made to restrain that such Mortmain should not be aliened; and that yet it may prohibit the same condition to be made upon a feoffment made in fee-simple to a man and to his heirs for that is the most high, the most free, and the most pure estate that is in the law. But the law suffereth such a condition to be made upon a gift in tail, because the statute prohibiteth that no alienation should be made thereof. And then, as the law suffereth such a condition upon a gift in Mortmain, that is to say, that he shall not be aliened, to be good; so it judgeth the condition also according, to the words: that is to say, if the condition be general, that they shall not alien to no man, as this case is, that it shall be taken generally according to the words, and it shall not be taken that the intent of the giver was otherwise than he expressed in his gift: though percase if he were alive himself, and the question were asked him, whether he would be contented it should be aliened for the said two causes or not, he would say yea; but when he is dead no man hath authority to interpret his gift otherwise than the law suffereth, nor otherwise than the words of the gift be. And if the condition be special, that is to say, that the land shall not be aliened to such a man or such a man, then the condition shall be taken -according to the words, and then they may be aliened as for that condition to any other but to them to, whom it is expressly prohibited that the land should not be aliened to. And if the lands in that case be aliened to one that is not excepted in the condition, then he may alien the land to him that is first excepted without breaking of the condition; for conditions be taken strictly in the law, and without equity. And thus methinketh, that because the said, condition is general, and restraineth all alienations, that it may not be aliened neither by the law of the realm, ne yet by conscience, no more for the said two causes, than it may for any other cause. And this case must of necessity be judged after the rules and grounds of the law of the realm, and after no other law, as meseemeth.