The Doctor and Student (1518)

Christopher St. Germain

The third question of the doctor, if a man prosecute a collateral warranty to extinct a right he knows another man hath to land, it be a bar in conscience

Doct. A man is disseised of certain land, the disseisor selleth the land, etc., the alienee knowing of the disseisin, obtaineth a release with a warranty of an ancestor collateral to the disseisee, that knoweth also the right of the disseisee; that ancestor collateral dieth, after whose death the warranty descendeth upon the disseisee: whether may the alienee in that case hold the land in conscience as he may by the law?

Stud. Sith the warranty is descended upon him, whereby he is barred in the law, methinketh that he shall also be barred in conscience; and that this case is like to the case in the next chapter before, wherein I have said that (as methinketh) it is a bar in conscience.

Doct. Though it might be taken for a bar in conscience in that case, yet methinketh in this case it cannot. For in that case the younger brother entered as heir, knowing none other but that he was heir of right, and after, when he sold the land, the buyer knew not but that he that sold it had good right to sell it, and so he was ignorant of the title of the eldest brother; and that ignorance came by the default and absence of himself that was the eldest brother; but in this case as well the buyer, as lie that made the collateral warranty, knew the right of the disseisee, and did that they could to extinct the right, and so they did as they would not should have been done to them: and so it seemeth that he that hath the land may not with conscience keep it,

Stud. Though it be as thou sayest that all they offended in obtaining of the said collateral warranty; yet such offence is not to be considered in the law, but it be in very special cases: for if such alledgings should be accepted in the law, releases, and other writings, should be of small effect, and upon every light surmise all writings might come in trial, whether they were made with conscience or not. Therefore to avoid that inconvenience, the law will drive the party to answer only whether it be his deed or not, and not whether the deed were made with conscience or against conscience: and though the party may be at a mischief thereby; yet the law will rather suffer the mischief than the said inconvenience. And like law is, if a woman covert for dread of her husband by compulsion of him levy a fine, yet the woman after her husband’s death shall not be admitted to shew that matter in avoiding of the fine, for the inconvenience that might follow thereupon. And after the opinion of many men, there is no remedy in these cases in the chancery. For they say that where the Common law, in cases concerning inheritance, putteth the party upon any averment for eschewing of an inconvenience that might follow of it among the people, that if the same inconvenience should follow in the Chancery, if the same matter would be pleaded there, that no subpoena should lie in such cases: and so it is in the cases before rehearsed; for as much vexation, delay, costs and expences might grow to the party, if he should be put to answer to such averments in the Chancery, as if he were put to answer for them at the Common law: and therefore they think that no subpoena lieth in the said cases, ne in other like unto them. Nevertheless I do not take it that their opinion is, that he that bought the land in this case may with good conscience hold the land, because he shall not be compelled by no law to restore it; but that he is in conscience and by the law of reason bound to restore it, or otherwise to recompence the party, so as he shall be contented. And I suppose verily it is so, if he will keep his soul out of peril and danger. And after some men, to these cases may be resembled the case of a fine with non-claim, that is remembered before in the 24th chapter of this book, where a man knowing another to have right to certain land, causeth fine to be levied thereof with proclaimation, and the other suffereth five years to pass without claim; in that case he hath no remedy neither by Common law, nor by subpoena, and that yet he that levied the fine is bound to restore the land in conscience. And methinketh I could right well agree, that it should be so in this case, and that specially, because the party himself knoweth perfectly that the said collateral warranty was obtained by covin and against conscience.