The Doctor and Student (1518)

Christopher St. Germain

The second question of the doctor, whether the warranty of a younger brother taken as heir is a bar to the eldest brother

Whether warranty of the younger brother that is taken as heir, because it is not known but that the eldest brother is dead, be in conscience a bar unto the eldest brother, as it is in law?

Doct. A man seised of lands in fee hath issue two sons, the eldest son goeth beyond the sea, and because a common voice is that he is dead, the younger brother is taken for heir, the father dieth, the younger brother entereth as heir, and alieneth the land with a warranty, and dieth without any heir of his body, and after the eldest brother cometh again, and claimeth the land as heir to his father; whether shall he be barred by that warranty in conscience, as he is in the law?

Stud. It is a maxim in the law, that the eldest brother shall in that case be barred: and that maxim is taken to be of as strong effect in the law, as if it were ordained by statute to be a bar. And it is as old a law that such a warranty shall bar the heir, as it is that the inheritance of the father shall only descend to the eldest son. And sith the law so is, why then should not conscience follow the law, as well as it doth in that point, that the eldest son shall have the land?

Doct. For there appeareth no reasonable cause whereupon the maxim ought to have a lawful beginning: for what reason is it that the warranty of an ancestor that hath no right to land should bar him that hath right? And if it were ordained by statute, that one man should have another man’s land, and no cause is expressed why he should have it; in that case, though he might hold the land by force of that statute, yet he could not hold it in conscience, without there was a cause why he should have it. And these cases be not like, as me seemeth, to the forfeiture of goods by an outlawry: for it will agree for this time, that that forfeiture standeth with conscience, because it is ordained for ministration of justice: but I cannot perceive any such case here; and therefore methinketh that this case is like to the maxim that was at the Common law of wreck of the sea, that is to say, that if a man’s goods had, been wrecked upon the sea, that the goods should have been immediately forfeited to the king. And it is holden by all doctors, that that law is against conscience, except in certain cases that were too long to rehearse now. And it was ordained by the statute of West. I, that if a dog or cat come alive to the land, that the owner, if he prove the goods within a year and a day to be his, shall have them whereby the said law of wrecks of the sea is made more sufferable than it was before. And some think in this case that this warranty is no bar in conscience, though it be a bar in the law.

Stud. I pray thee keep that case of wreck of the sea in thy remembrance, and put it hereafter as one of thy questions, and thereupon shew me farther thy mind therein, and I shall with good-will shew thee my mind. And as to this case that we be in now, methinketh the maxim whereby the warranty shall be a bar is good and reasonable: for it seemeth not against reason that a man shall be bound, as to temporal things, by the act of his ancestor to whom he is heir: for like as by the law it is ordained, that he shall have advantage by the same ancestor, and have all his lands by descent, if he have any right; so it seemeth that it is not unreasonable, though the law, for the privity of blood that is between them, suffer them to have a disadvantage by the same ancestor. But if the maxim were, that if any of his ancestors, though he were not heir to him, made such a warranty, that it should be a bar; I think that maxim were against conscience, for in that case there were no ground nor consideration to prove how the said maxim should have a lawful beginning, wherefore it. were to be taken as a maxim against the law of reason. But methinketh it is otherwise in this case, for the reason that I have made before.

Doct. If the father bind him and his heirs to the payment of a debt, and die in that case the son shall not be bound to pay the debt, unless he have assets by descent from his father. And so I would agree, that if this man have assets by descent from the ancestor that made the warranty, that he should have been barred: but else methinketh it should stand hardly with conscience that it should be a bar.

Stud. In that cafe of the obligation the law is as thou sayest: and the cause is, for that the maxim of the law in that case is none other, but that he shall be charged if he have assets by descent: but if the maxim had been general, that the heir should be bound in that case without any assets, or if it were ordained by statute that it should be so, I think that both the maxim and the statute should well stand with conscience. And like law is, where a man is vouched as heir, he may enter as he that hath nothing by descent but where he claimeth the land in his own right, there the warranty of his ancestor shall be a bar to him, though he have no assets from the same ancestor: and though it be said in Ezekiel, cap. 18, “That the son shall not bear the wickedness of the father,” that is understood spiritually. But as to temporal goods, the opinion of the doctors is, that the son sometime may bear the offence of his father.

Doct: Now that I have heard thy mind in this case, I will take advisement therein till a better leisure, and will now proceed to another question.

Stud. I pray thee do as thou sayest, and I shall with good-will make answer thereto as well as I can.