droit; yet, if it be of like perdurable estate, they are so extinct, as by act in law they may be revived, but by grant they cannot. For, if a man have a seigniory in his own right, and the land descend to his wife, and his wife dieth without issue, the seigniory is revived; but if he will make a feoffment in fee, saving his rent, he cannot do it. But there is a great difference, and let it be well observed, between autre capacitie and autre droit; for in case of autre capacitie the interests are contigua, and not continua, conjoined, but not confounded. And, therefore, if the master of an hospital have a seigniory, and the mayor and commonalty of St. Albans have a tenancy, and the master of the hospital be made mayor, and the mayor grant away the tenancy under the seal of the mayor and commonalty, the seigniory of the hospital is revived. So between natural capacity and politic, if a man have a seigniory to him and his heirs, and a bishop is tenant, and the lord is made bishop, and the bishop, before the statute, grants away the land under the chapter's seal, the seigniory is revived. The same reason is between the capacity of the crown and the capacity of the duchy, which is in the king's natural capacity, though illustrated with some privileges of the crown; if the king have the seigniory in the right of his crown, and the tenancy in the right of the duchy, as our case is, and make a feoffment of the tenancy, the tenure must be revived; and this is by the ground of the common law. But the case is the more strong by reason of the statute of 1 H. IV., 3 H. V. and 1 H.VII. of the duchy, by which the duchy-seal is enabled to pass lands of the duchy, but no ways to touch the crown: and whether the king be in actual possession of the thing that should pass, or have only a right, or a condition, or a thing in suspense, as our case is, all is one; for that seal will not extinguish so much as a spark of that which is in the right of the crown; and so a plain revivor. And if it be said that a mischief will follow, for that upon every duchy patent men shall not know how to hold, because men must go back to the ancient tenure, and not rest on the terms limited; for this mischief there grows an easy remedy, which, likewise, is now in use, which is to take both seals, and then all is safe. Secondly, as the king cannot under the duchyseal grant away his ancient scigniory in the right of his crown, so he cannot make any new reservation by that seal, and so, of necessity, it falleth to the law to make the tenure; for every reservation must be of the nature of that that passeth, as a dean and chapter cannot grant land of the chapter, and reserve a rent to the dean and his heirs, nor e converso: nor no more can the king grant land of the duchy under that seal, and reserve a tenure to the crown: and therefore it is warily put in the end of the case of the duchy in the commentaries, where it is said, if the king make a feoffment of the duchy land, the feoffee shall hold in capite; but not a word of that it should be by way of express reservation, but upon a feoffment simply, the law shall work it and supply it. To conclude, there is direct authority in the point, but that it is via versa; and it was the Bishop of Salisbury's case: the king had in the right of the duchy a rent issuing out of land, which was monastery land, which he had in the right of the crown, and granted away the land under the great seal of the bishop; and yet, nevertheless, the rent continued to the duchy, and so upon great and grave advice it was in the duchy decreed: so, as your lordship seeth, whether you take the tenure of the tenancy, or the tenure of the manor, this land must be held in capite. And, therefore, &c. THE CASE OF REVOCATION OF USES, IN THE KING'S BENCH. The Case, shortly put, without Names or Dates more | lady were at no loss by the exchange, inserteth than of Necessity, is this. SIR JOHN STANHOPE conveys the manor of Burrough-ash to his lady for part of her jointure, and Intending, as is manifest, not to restrain himself, nor his son, from disposing some proportion of that land according to their occasions, so as my into the conveyance a power of revocation and alteration in this manner; provided that it shall be lawful for himself and his son successively to alter and make void the uses, and to limit and appoint new uses, so it exceed not the value of twenty pounds, to be computed after the rents then answered: and that immediately after such declaration, or making void, the feoffees shall stand seised to such new uses; ita quod, her or his son, within six months after such declaration, or making void shall assure, within the same town, tantum terrarum et tenementorum, et similis valoris, as were so revoked, to the uses expressed in the first conveyance. Sir John Stanhope, his son, revokes the land in Burrough-ash, and other parcels not exceeding the value of twenty pounds, and within six months assures to my lady and to the former uses Burtonjoice and other lands; and the jury have found that the lands revoked contain twice so much in number of acres, and twice so much in yearly value, as the new lands, but yet that the new lands are rented at twenty-one pounds, and find the lands of Burrough-ash now out of lease formerly made and that no notice of this new assurance was given before the ejectment, but only that Sir John Stanhope had, by word, told his mother that such an assurance was made, not showing or delivering the deed. : The question is, Whether Burrough-ash be well revoked? Which question divides itself into three points. First, whether the ita quod be a void and idle clause for if so, then there needs no new assurance, but the revocation is absolute per se. The next is, if it be an effectual clause, whether it be pursued or no? wherein the question will rest, whether the value of the reassured lands shall be only computed by rents? And the third is, if in other points it should be well pursued, yet whether the revocation can work until a sufficient notice of the new assurance? And I shall prove plainly, that ita quod stands well with the power of revocation; and if it should fall to the ground, it draws all the rest of the clause with it, and makes the whole void, and cannot be void alone by itself. governs the clause precedent of the power, and that it makes it wait and expect otherwise than as by way of inception, but the effect and operation is suspended, till that part also be performed; and if otherwise, then I say plainly, you shall not construe by fractions; but the whole clause and power is void, not in tanto, but in toto. Of the first of them I will give four reasons. The first reason is, that the wisdom of the law useth to transpose words according to the sense; and not so much to respect how the words do take place, but how the acts, which are guided by those words, may take place. Hill and case, com. f Hill and Graunger's case, comment. 171. A man in August makes a lease, Graunger's rendering ten pounds rent yearly to be 171. paid at the feasts of Annunciation and Michaelmas; these words shall be inverted by law, as if they had been set thus, at Michaelmas and the Annunciation: for else he cannot have a rent yearly; for there will be fourteen months to the first year. case, 2 Jac. Co. Fitzwilliams's case, 2 Jac. Co. p. 6, Fitzwilliams's f. 33, it was contained in an indenture p. 6, 33. of uses, that Sir William Fitzwilliams should have power to alter, and change, revoke, determine, and make void the uses limited: the words are placed disorderly; for it is in nature first to determine the uses, and after to change them by limitation of new. But the chief question being in the book, whether it might be done by the same deed; it is admitted and thought not worth the speaking to, that the law shall marshal the acts against the order of the words, that is, first to make void, then to limit. So if I convey land and covenant with you to make farther assurance, so that you require it of me, there, though the request be placed last, yet it must be acted first. So if I let land to you for à term, and say, farther, it shall be lawful for you to take twenty timber trees to erect a new tenement upon the land, so that my bailiff do assign you where you shall take them, here the assignment, though last placed, must precede. And, therefore, the gram I shall prove likewise that the value must needs be accounted not a tale value, or an arithmetical value by the rent, but a true value in quantity and quality. And, lastly, that a notice is of necessity, as this marians do infer well upon the word period, which case is. I will not deny, but it is a great power of wit to make clear things doubtful; but it is the true use of wit to make doubtful things clear, or at least to maintain things that are clear to be clear, as they are. And in that kind I conceive my labour will be in this case, which I hold to be a case rather of novelty than difficulty, and, therefore, may require argument, but will not endure much argument, but, to speak plainly to my understanding, as the case hath no equity in it, I might say piety, so it hath no great doubt in law. First, therefore, this it is, that I affirm that the clause so that, ita quod, containing the recompense, VOL. III.-36 is a full and complete clause or sentence, that it is complexus orationis circularis: for as in a circle there is not prius nor posterius, so in one sentence you shall not respect the placing of words; but though the words lie in length, yet the sense is round, so as prima erunt novissima et novissima prima. For though you cannot speak all at once so, yet you must construe and judge upon all at once. To apply this; I say these words, so that, though loco et textu posteriora, yet they be potestate et sensu priora: as if they had been penned thus, that it shall be lawful for Sir Thomas Stanhope, so that he assure lands, &c., to revoke; and what difference between, so that he assure, he may 2A2 revoke; or, he may revoke, so that he assure; for you must either make the "so that" to be precedent or void, as I shall tell you anon. And, therefore, the law will rather invert the words than pervert the sense. But it will be said, that in the cases I put it is left indefinite, when the act last limited shall be performed; and so the law may marshal it as it may stand with possibility; and so if it had been in this case no more but, so that Sir Thomas or John should assure new lands, and no time spoken of, the law might have intended it precedent. But in this case it is precisely put to be at any time within six months after the declaration, and, therefore, you cannot vary in the times. To this I answer, that the new assurance must be in deed in time after the instrument or deed of the declaration; but, on the other side, it must be time precedent to the operation of the law, by determining the uses thereupon; so it is not to be applied so much to the declaration itself, but to the warrant of the declaration. It shall be lawful, so that, &c. And this will appear more plainly by my second reason, to which now I come; for as for the cavillation upon the word immediately, I will speak to it after. My second reason, therefore, is out of the use and signification of this conjunction or bond of speech, "so that:" for no man will make any great doubt of it, if the words had been si, if Sir Thomas shall within six months of such declaration convey; but that it must have been intended precedent; yet, if you mark it well, these words ita quod and si, howsoever in propriety the ita quod may seem subsequent, and the si precedent, yet they both bow to the sense. 4 E. 6. Pl. Com. Col thurst's case. Thomas shall declare with the consent of my lord chief justice? And if it had been thus, so that Sir John, within six months after such declaration, shall obtain the consent of my lord chief justice, should not the uses have expected? But these, you will say, are forms and circumstances annexed to the conveyance required: why, surely, any collateral matter coupled by the ita quod is as strong? If the ita quod had been, that Sir John Stanhope within six months should have paid my lady one thousand pounds, or entered into bond never more to disturb her, or the like, all these make but one entire idea or notion, how that his power should not be categorical, or simple, at pleasure, but hypothetical, and qualified, and restrained, that is to say, not the one without the other, and they are parts incorporated into the nature and essence of the authority itself. The third reason is, the justice of the law in taking words so as no material part of the parties' intent perish; for, as one saith, præstat torquere verba quam homines, better wrest words out of place than my Lady Stanhope out of her jointure, that was meant to her. And, therefore, it is elegantly said in Fitzwilliams's case, which I vouched before, though words be contradictory, and, to use the phrase of the book, pugnant tanquam ex diametro; yet the law delighteth to make atonement, as well between words as between parties, and will reconcile them so as they may stand, and abhorreth a vacuum, as well as nature abhorreth it; and, as nature, to avoid a vacuum, will draw substances contrary to their propriety, so will the law draw words. Therefore, saith Littleton, if I make a feoffment reddendo rent to a stranger, this is a condition to the feoffor, rather than it shall be So we see in 4 Edw. VI. Colthurst's void, which is quite cross; it sounds a rent, it case a man leaseth to J. S. a house, works a condition, it is limited to a third person, si ipse vellet habitare et residens esse; it inureth to the feoffor; and yet the law favoureth there the word si amounts to a condition subse-not conditions, but to avoid a vacuum. quent; for he could not be resident before he took the state; and so, via versa may ita quod be precedent, for else it must be idle and void. But I go farther, for I say ila quod, though it be good words of condition, yet more properly it is neither condition, precedent, nor subsequent, but rather a qualification, or form, or adherent to the acts, whereto it is joined, and made part of their essence, which will appear evidently by other cases. For, allow it had been thus, so that the deed of declaration be enrolled within six months, this is all one, as by deed enrolled within six months, as it is said in Digg's case, 42 Eliz. f. 173, that by deed indented to be enrolled is all one with deed indented and enrolled. It is but a modus faciendi, a description, and of the same nature is the ita quod; so, if it had been thus, it shall be lawful for Sir Thomas to declare, so that the declaration be with the consent of my lord chief justice, is it not all one with the more compendious form of penning, that Sir Digg's case, 42 Eliz. Co. I'. I. f. 173. 45 E. 3 So in the case of 45 E. III., a man gives land in frank-marriage, the remainder in fee. The frank-marriage is first put, and that can be but by tenure of the donor; yet, rather than the remainder should be void, though it be last placed, the frank-marriage, being but a privilege of estate, shall be destroyed. So 33 H. VI., Tressham's case; the king granteth a wardship before it fall; good, because it cannot inure by covenant, and if it should not be good by plea, as the book terms it, it were void; so that, no, not in the king's case, the law will not admit words to be void. So then the intent appears most plainly, that this act of Sir John should be actus geminus, a kind of twine to take back and to give back, and to make an exchange, and not a resumption; and, therefore, upon a conceit of repugnancy, to take the one part, which is the privation of my lady's jointure, and not the other, which is the restitution or compensation, were a thing utterly injurious in matter, and absurd in con- may a conveyance in use or declaration of use struction. receive a consummation by degrees, and several acts. And thus much for the main point. Now, for the objection of the word immediate, it is but light and a kind of sophistry. They say that the words are, that the uses shall rise immediately after the declaration, and we would have an interposition of an act between, namely, that there should be a declaration first, then a new assurance within the six months; and, lastly, the uses to rise: whereunto the answer is easy; for we have showed before that the declaration and the new assurance are in the intent of him that made the conveyance, and likewise, in eye of law, but as one compounded act. So as immediately after the declaration must be understood of a perfect and effectual declaration, with the adjuncts and accouplements expressed. The fourth reason is out of the nature of the conveyance, which is by way of use, and therefore ought to be construed more favourably, according to the intent, and not literally or strictly; for although it be said in Frene and Dillon's case, and in Fitzwilliams's case, that it is safe so to construe the statute of 27 H. VIII. as that uses may be made subject to the rules of the common law, which the professors of the law do know, and not to leave them to be extravagant and irregular; yet, if the late authorities be well marked, and the reason of them, you shall find this difference, that uses in point of operation are reduced to a kind of conformity with the rules of the common law, but that in point of exposition of words they retain somewhat of their ancient nature, and are expounded more liberally, according to the intent; for with that part the statute of 27 doth not meddle. And, therefore, if the question be, whether a bargain and sale upon condition be good to reduce the state back without an entry? or whether, if a man make a feoffment in fee to the use of John a Style for years, the remainder to the right heirs of John a Downe, this remainder be good or no? these cases will follow the grounds of the common law for possessions, in point of operation; but so will it not be in point of exposition. The case of the For if I have the manor of Dale and the manor of Sale lying both in Vale, and I make a lease for life of them both, the remainder of the manor of Dale, and all other my lands in Vale to John a Style, the remainder of the manor of Sale to John a Downe, this latter remainder is void, because it comes too late, the general words having carried it before to John a Style. But put it by way of use a man makes a feoffment in fee of both manors, and limits the use of the manor of Dale, and all the other lands in Vale to the use of himself, and his wife for her jointure, and of the manor of Sale to the use of himself alone. Now his wife shall have no jointure in the manor of Sale, and so was it judged in the case of the manor of Odiam. And therefore our case is more strong, being by way of use, and you may well construe the latter part to control and qualify the first, and to make it attend and expect; nay, it is not amiss to see the case of Peryman, 41 Eliz. Coke, 5, f. 84. p. 5, f. 84, where by a custom a livery may expect; for the case was, that in the manor of Porchester the custom was, that a feoffment of land should not be good, except it were presented within a year in the court of the manor, and there ruled that it was but actus inchoatus, till it was presented; now, if it be not merely against reason of law, that so solemn a conveyance as livery, which keeps state, I tell you, and will not wait, should expect a farther perfection, a fortiori, 41 Eliz. Co. p. 49 E. 3, f. 11. So we see in 49 E. III. f. 11, if a man be attainted of felony, that holds lands of a common person, the king shall have his year, day, and waste; but when? Not before an office found; and yet the words of the statute of prærogativa regis are, rex habebit catalla felonum, et si ipsi habent liberum tenementum, statim capiatur in manus domini, et rex habebit · annum, diem et vastum: and here the word statim is understood of the effectual and lawful time, that is, after office found. 2 H. 4, f. 17. So in 2 H. IV. f. 17, it appears that by the statute of Acton Burnell, if the debt be acknowledged, and the day past that the goods of the debtors shall be sold statim. in French maintenant; yet, nevertheless, this statim shall not be understood before the process of law requisite passed, that is, the day comprised in the extent. 27 H. 8, f. 19. So it is said 27 H. VIII. f. 19, by Audley the chancellor, that the present tense shall be taken for the future; a fortiori, say I, the immediate future tense may be taken for a distant future tense; as if I be bound that my son, being of the age of twenty-one years, shall marry your daughter, and that he be now of twelve years; yet this shall be understood, when he shall be of the age of twenty-one years. And so in our case immediately after the declaration is intended when all things shall be performed, that are coupled with the said declaration. 1 But in this I doubt I labour too much; for no man will be of opinion, that it was intended that the Lady Stanhope should be six whole months without either the old jointure or the new; but that the old should expect until the new were settled without any interim. And so I conclude this course of atonements, as Fitzwilliams's case calls it, whereby I have proved, that all the words, by a true marshaling of the acts, may stand according to the intent of the parties. I may add tanquam ex abundanti, that if both clauses do not live together, they must both die Jermin and As together; for the law loves neither fractions of estates nor fractions of constructions; and therefore in Jermin and Askew's case, kew's case. 37 Eliz., a man did devise lands in tail with proviso, that if the devisee did attempt to alien, his estate should cease, as if he were naturally dead. Is it said there that the words, as if he were naturally dead, shall be void, and the words, that his estate shall cease, good? No, but the whole clause shall be void. And it is all one reason of a so that, as of an as if, for they both suspend the sentence. So if I make a lease for life, upon condition he shall not alien, nor take the profits, shall this be good for the first part, and void for the second? No, but it shall be void for both. So if the power of declaration of uses had been thus penned, that Sir John Stanhope might by his deed indented declare new uses, so that the deed were enrolled before the mayor of St. Albans, who hath no power to take enrolments; or so that the deed were made in such sort, as might not be made void by Parliament: in all these and the like cases the impossibility of the last part doth strike upwards, and infect, and destroy the whole clause. And, therefore, that all the words may stand, is the first and true course; that all the words be void, is the second and probable; but that the revoking part should be good, and the assuring part void, hath neither truth nor probability. Now come I to the second point, how this value should be measured, wherein, methinks, you are as ill a measurer of values as you are an expounder of words; which point I will divide, first considering what the law doth generally intend by the word value; and, secondly, to see what special words may be in these clauses, either to draw it to a value of a present arrentation, or to understand it of a just and true value. the question is, whether, upon an eviction, there shall not be recovered from me land to the value of twenty pounds. So if a man give land in frank-marriage then rented at forty pounds and no more worth, there descendeth other lands, let perhaps for a year or two for twenty pounds, but worth eighty pounds, shall not the donee be at liberty to put this land in hotchpotch? So if two parceners be in tail, and they make partition of lands equal in rent, but far unequal in value, shall this bind their issues? By no means; for there is no calendar so false to judge of values as the rent, being sometimes improved, sometimes ancient, sometimes where great fines have been taken, sometimes where no fines; so as in point of recompense you were as good put false weights into the hands of the law, as to bring in this interpretation of value by a present arrentation. But this is not worth the speaking to in general; that which giveth colour is the special words in the clause of revocation, that the twenty pounds' value should be according to the rents then answered; and, therefore, that there should be a correspondence in the computation likewise of the recompense. But this is so far from countenancing that exposition, as, well noted, it crosseth it; for opposita juxta se posita magis elucescunt: first, it may be the intent of Sir Thomas, in the first clause, was double, partly to exclude any land in demesne, partly knowing the land was double, and as some say quadruple, better than the rent, he would have the more scope of revocation under his twenty pounds' value. But what is this to the clause of recompense? first, are there any words secundum computationem prædictam? There are none. Secondly, doth the clause rest upon the words similis valoris? No, but joineth tantum et similis valoris : confound not predicaments; for they are the mere-stones of The word value is a word well known to the reason. Here is both quantity and quality; nay, law, and therefore cannot be, except it be will-he saith farther, within the same towns. Why, ingly, misunderstood. By the common law marry, it is somewhat to have men's possessions there is upon a warranty a recovery in value. I put the case, therefore, that I make a feoffment in fee with warranty of the manor of Dale, being worth twenty pounds per annum, and then in lease for twenty shillings. The lease expires, for that is our case, though I hold it not needful, lie about them, and not dispersed. So it must be as much, as good, as near; so plainly doth the intent appear, that my lady should not be a loser. [For the point of the notice, it was discharged by the court.] |