The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The second Dialogue of Gifts and Graunts. (Book 2)

NOmomathes.

In handeling the lear∣ning [Diuision. 1] of Gifts and Graunts,* 1.1 I thinke it most fit in the first place to bee en∣quired what things may be giuen or graunted: wherefore first I pray you satisfie me in this.

Codicgn.

A man may giue all such things as an other may receiue:a) 1.2 for dare & accipere sunt cor∣relatiua:* 1.3 and all such things may bee receiued which lie in commerce.

Nomom.

Then things consecrated and eccle∣siastical may not be ••liened, because they lie not in contract.

Codicgn.

Things ecclesiasticall though they be not consecrate,* 1.4 cannot regularly be giuen or grantedb) 1.5, and I did vse this word (regularly) be∣cause where such alienation may bring profit to the Church, it shall be of forcec) 1.6.

Anglonomo.

In our Law a Writ of Contra for∣mam alienationis lieth where a man gaue lands or tenements to an Abbot or house of Religion before the Statute of Quia emptores terrarum, to hold of him in frankalmoigne, and after the Abbot with the Couent did alien the same land in fee to another;* 1.7 now hee that gaue this lande or his heire may sue this Writte of Contra for∣mam collationis against the Abbot or his succes∣sor, but not against the tenant of the land, but

when hee hath recouered the land, hee may sue a Scire facias against the tenaunt of the freeholdd) 1.8 and this Writ of Contra formam collationis lyeth not, though the Abbot doeth alien in fee, vn∣lesse the Abbot & the Couent doe alien in feee) 1.9, and if an Abbot with the Couent doe alien an Aduowson in fee, at the next auoydance the foundor or his heire may present to the aduow∣son, because they cannot in such case sue a Contr formam collationis.f) 1.10.

[Diuision. 2] Nomom.

Let me know I pray you how many kinds of Gifts there be.

Aoglonomoph.

* 1.11They be of diuerse sorts: some are called free Gifts, which proceede meerely of a mans good will and beneuolence: others may be called Compensatorie, because they are giuen for some cause or consideration: Gifts or gra s of the first kind are such as I shall nowe recite out of our bookes. Frst, the Queene may graunt to one lande ex mero motu,* 1.12 and though her High∣nesse doe rehearse some consideration in the pa∣tent of her graunt which is not true, as if the consideration bee, that whereas the grauntee hath done her Maiestie good seruice on the Sea, or beyond the Sea, or in her Maiesties warres, or in some other busines: though the consideration be meerely supposed and not true, and therefore no good consideration in Law, yet the words ex mero motu doe make the grant goodg) 1.13, and where∣as the Queene ex certa scientia, & mero motu doth confirme a graunt, supposing that a graunt was made before, where in truth there was no such

thing, it is held that her highnes shall be conclu∣ded to say, that no such grant was made: other∣wise it had beene if this word (informamur) had bin vsed in reciting the grant.h) 1.14 For if her high∣nesse grant anie thing vpon the false suggestion of the partie, this graunt is voide,* 1.15 because she is deceiued in her graunt,i) 1.16 and wee haue a rule: Si suggestio non sit vera, literae patentes sūt vacuae.k) 1.17 For when the graunt is made vpon the suggesti∣on of the partie, the words of the graunt shall bee taken strictly, but when it is ex mero motu it must be construed and interpreted according to the Kings intent, and as fauorably for the graun∣tee as reason will permitl) 1.18, and if a common per∣son doe without consideration giue to I. S. his his goods (indefinitly) al his goods do passe, and if a common person doe by deede enrolled en∣feoffe the Queene of his lands without any con∣sideration, the Queene shall be seised to her own vse, as hauing such prerogatiue in her person, that shee shall not bee seised to the vse of anie o∣ther.m) 1.19 Gifts made vpon consideration may be explained by cases likewise drawne out of our bookes, though in a common persons case the consideration which is mentioned be false, yet the vse shall bee to the feoffees, as appeareth by Wilkeses case,* 1.20 who reciting by his deed falsely that in consideration of 700. li. payed, he had en∣feoffed A. and B. to haue and to hold to them and to their heires, to the proper vse & behoofe of the said A. and B. in perpetuum: afterward by Office it was found that Wilkes was seised of

the land, and that hee held in Capite, and I. was founde to bee his heire and of full age: yet it was helde that the heire should not be receiued to auerre the consideration false against the ac∣knowledgement of his ancestor:n) 1.21 and so it hath beene helde in Villiers his case, that where mo∣ney is the consideration expressed another con∣sideratiō shal not be auerred,* 1.22 neither shal a Cau∣sa matrimonij praelocuti be auerred where another consideration is expressed, but where no consi∣deration is expressed, there a consideration may be auerred: or where the consideration auerred is not repugnant to the consideration expressed in the deed.o) 1.23 And though the consideration bee not valuable, yet it may be a good consideration to raise or to alter an vse: for in Sharingtons case it hath bin adiudged, that the affection of the father for the prouision for the heires males which hee may beget, and the affection which he hath that the land may remaine in his bloud and name,* 1.24 be causes sufficient to make vses in the land, for (as it is there said) Naturae vis maxima, & Natura bis maxim.p) 1.25 And so betwixt brethren pro fraterno a∣more is a good consideration to raise an vse,q) 1.26 and a man leuied a fine to the vse of himselfe, & such wife or wiues as hee should marry, and after hee tooke to wife A. she shal take in iointure being by way of vse, otherwise it had beene by estate exe∣cuted.r) 1.27

Canon.

By our law a man cannot giue any thing to the common weale without consideratiō, but to a priuate person he may.rr) 1.28

Canonol.

By the Cannon Law nudum pactum doth binde the party, especially being confirmed by an oath: much more a bare donation* 1.29.

Nomom.

As to the point of consideration we [Diuision. 3] shall better perceiue the strength and properties therof,* 1.30 when we enter into discourse of bargains and sales, now let mee know in what cases, and how farre forth graunts shall bee taken most be∣neficially for the grauntee.

Anglonomoph.

When a graunt is non-certaine,* 1.31 it must be taken most strongly against the graun∣tor; for if a man graunt an annuitie out of cer∣taine lande, and hee hath no lande at the time of the graunt, yet the grant shal charge his persons 1.32, and if a deede of graunt be good in parcell, and for parcell not,* 1.33 that which is for the aduantage of the grauntee shal be taken to be good, as if a man graunt vnto me an annuitie, prouiso that it shall not charge his person, the prouiso is voide, and the graunt is goodt 1.34, And if an annuitie be graun∣ted pro consilio impendendo, though the grauntee be well skilled in diuers sciences or faculties, yet counsell shalbe giuen in that faculty only, which was intended at the time of the grauntu 1.35, But in some cases the graunt must be construed accor∣ding to a reasonable and indifferent intendment, as if a man make a lease of a house, so that the les∣see may make his profite of the houses within it, the lessee cannot in this case take downe or de∣molish the houses, nor make waste in them, for the intent was not so,a 1.36 but if the King graunt to me visum franciplegij in omnibus terris meis, & feo∣dis,

I cannot haue this in my landes and tene∣ments,* 1.37 which I shall afterwards purchase,b 1.38 But if the king graunt to a man that he and his heires shall bee quit of taxe for their landes which they haue, this is a good graunt though there bee no taxe due at the time of the graunt,c 1.39 And so is the Law of Tenths and Fifteenesd 1.40, and he to whom the King graunteth a licence may not varie from the proper sense & the significancy of the words.e 1.41 And if the king before the dissolution of Mona∣steries had licenced an Abbot and his Couent to make a feoffement, if the Abbot onely had made it the feoffement had beene voide,f 1.42 And 3. Ed. 3. the King licenced one to leuie a fine of the man∣nour of Dale, to the intent to maintayne two Chaplaines, and hee woulde haue leuied the fine omitting the Chaplaines, but was not suf∣fered,g 1.43 and 3. Edward 3. the licence was to le∣uie a Fine of the Mannour of Dale, and hee woulde haue leuied the Fine with a foreprise or exception of certaine acres, parcell of the Mannour, rendring rent, but was not admit∣ted to it, because it coulde not stande with the licence, which was that all the Mannour should bee charged with the rent,h 1.44 So if the Queene licence one to make a Feoffement by deede, hee cannot make i•• without deede,i 1.45 and this Lawe holdeth likewise in a common persons case, for if hee that hath a Warrant of Attourney to de∣liuer seisin absolutely, doe deliuer seisin vpon condition, this is a disseisin to the feoffourk 1.46, And a graunt is not to bee fauoured contrarie

to the euident & perspicuous sense of the words.* 1.47 For if a man grant to another a loade of wood to take in his soyle euery yeare, and the graun∣tee surceaseth the two first yeares, and the third yeare hee taketh three loades, hee is a wronge doer for two of them: so if a man graunt to an∣other a common for three beasts yearely, and hee taketh nothing the two first yeares, hee shall not haue common for three beastes the third yeare.l) 1.48 The aduowson of the Hospitall of Saint Katherines is appendant to the Mannour of B. the Hospitall being voide the Queene graun∣teth manerium ac omnes aduocationes cumpertinen∣tijs, the present presentment doth not passe:m) 1.49 for it is fructus aduocationis, and not the aduow∣son it selfe.n) 1.50

Codicgn.

The words of a grant are to bee ta∣ken most strictly against the grantor, becausenn) 1.51 hee might haue expressed his meaning in more full, large, and manifest words.

Nomom.

Now resolue mee whether a graunt [Diuision. 4] that is not good at the first may bee made good by matter ex post facto.

Anglonomop.

In no sorte:* 1.52 for if there bee Lorde and three ioyntenaunts, and the Lorde graunteth the seruices of one of them to a straunger, this is a voyde graunt though the same tenaunt doe attourne, and suruiue his com∣paignions. For no attournement can make an euill graunt to bee good,o) 1.53 and if a man lease lande to the husbande and wife during their liues, and after graunteth the reuersion of the

land which the husband holdeth for tearme of life, and then attournement is had, the graunt is voide, and the attournement also.p 1.54 And if a man be bound to a feme sole, and a straunger re∣leaseth to the obligour, and after marrieth the feme, yet the release is not good.q 1.55 So it is if in auncient time a Monke, Fryer, or Cannon pro∣fessed, which was no Soueraigne of an house, had graunted to one an annuitie, this was a voyd graunt, though he had beene after dereigned, or made Soueraigne of the same house, or some o∣therr 1.56.

Codign.

As that which is lawfully done cannot be made void to all intents, so that which is alto∣gether void at the beginning cannot be strength∣ned by continuance of time* 1.57.

[Diuision. 5] Nomom.

Let me aske you this question Ang∣lonomoph.* 1.58 whether may a tenant at will graunt o∣uer his estate or no, especially if he in the reuersi∣on doe after agree to it.

Anglonomo.

* 1.59I think not: for it is not properly an estate because it wanteth certaintie,s 1.60 but if my tenant at will be outed by a straunger, hee may reenter without my commandement: for the en∣tre of a stranger doth not determine my wil,t 1.61 and another reason why he cannot graunt his estate, is because his estate dependeth as well vpon his owne will, as the will of the lessor, and if he lease ouer the land, his will as to that intent is deter∣mined, and by consequent his estate,u 1.62 and his estate is such a non-estate in the eye of Law, that he cannot haue ayd of his lessor,* 1.63 and if the heire

accept a rent reserued vpon a lease at will made by his father, this cannot make the lease good, because it was voide before, no more then his ac∣ceptance of a rent reserued vpon a lease for yeres which is determined by reentrie, can make that lease good.x) 1.64

Codign.

The estate of such a tenaunt is none at all in our law, vnlesse he should set downe his wil in certaine who demiseth.y) 1.65

Canonologus,

So it is likewise in our law.z 1.66

Nomom.

I will not insiste any more vpon this matter, but will passe to the consideration of bar∣gaines and sales.

Notes

• * 1.1

  1. What things may be giuen or granted.
• a) 1.2

  l. in aedibus §. si. ff. Eo. tit.
• * 1.3

  2 That all things that li•• in commerce and may be rece ued may be giuen.
• * 1.4

  3 That things ecclesiastic••ll tho••gh they be not consecrate cannot regu∣larly be g••an∣ted.
• b) 1.5

  Cap. 2. de donation. & Eod. tit. de re. ecclesi. non a∣lien. in anti∣quis 6. & Cle. & in c. sine ex∣cept. cap. si quisquis 12. q. 2. & in l. Iube∣mus cum suis authen. C. de sacrosan. eccle.
• c) 1.6

  In dict. iur.
• * 1.7

  4 That if an Abbot a∣lien land•• gi∣uen in franke almogne to his house, the donor might haue a Writ of Contra formā collationis.
• d) 1.8

  Fitz. na. br. 210. f.
• e) 1.9

  19. E. 3. Cō∣tra formam collationis. 5. Fitz nat. br. 211. c.
• f) 1.10

  20. E. 3. Có∣orm̄ coll. 6
• * 1.11

  1 The diuerse kinds of Gifts, som being free some compen∣satorie.
• * 1.12

  2 What is wrought by the Queenes grant ex me∣••o motu.
• g) 1.13

  26. H 8. 1. per Fitz.
• h) 1.14

  9. H. 7. 2.
• * 1.15

  3 What is wrought by her Maiesties grant by words of In∣formamur.
• i) 1.16

  11. E. 4. 1. per Littlet{ur}.
• k) 1.17

  3. H. 7. 6.
• l) 1.18

  21. E. 4. 25. Abbe de Wal∣thams case {per} Browne & Genney.
• m) 1.19

  28. H. 8. 7. Dyer Boken∣hams case per Knightley.
• * 1.20

  4. Whether vpon a false considera. expressed. vse shall be rai ed in a common per¦sons case.
• n) 1.21

  1. Eliz. 169. Dy. Wilk. case.
• * 1.22

  5 That a consi∣deration may be auerred which is not repugnant to the vse expres¦sed.
• o) 1.23

  4. Mar. 146. Dy. Villier̄ case
• * 1.24

  6 That an vse may be altered by a conside∣ration not valuable.
• p) 1.25

  8. El. 298. Com̄: Shering∣tons case.
• q) 1.26

  13. El. 302. Dyer.
• r) 1.27

  10. Eliz. 274. Dy. per Wray, Mead, Plow∣den, & Owns∣law, & 3. Eliz. 190. Dame Brayes case.
• rr) 1.28

  li. hoc iure in princi. ff. de donat. Gl. in d. l. hoc iure. & l. Campanus ff. de oper. li∣bert.
• * 1.29

  c. de pact'.
• * 1.30

  1 In what ca∣se•• graunt•• shal be taken most beneficially for the graun∣tee.
• * 1.31

  2 That a grant non-certaine must be taken m••st strongly agai••st the grauntor.
• s 1.32

  9. H. 6. 12. {per} Babingt{ur}.
• * 1.33

  3 That a grant may be good in p••rt, and for parcell not.
• t 1.34

  20. E. 4. 8. {per} Towns. 14. H. 4. 30. {per} Hank.
• u 1.35

  41. E. 3. 6. Annuitie 19.
• a 1.36

  17. E. 3. 17.
• * 1.37

  4 How the Queens grants and licen••ies shall be con∣strued and in∣terpreted.
• b 1.38

  38. H. 6.10.
• c 1.39

  Ibid.
• d 1.40

  19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45.
• e 1.41

  18 E 2. Fines 124.
• f 1.42

  21. H. 7. 8.
• g 1.43

  3. E. 3. 5.
• h 1.44

  30. E. 3. 17.
• i 1.45

  21. H. 7 8. {per} Frowike.
• k 1.46

  12. Ass. pl. 24.
• * 1.47

  3 That a grant is not to be fa∣uored contrary to the manifest sense of the word.
• l) 1.48

  27. H. 6. 10.
• m) 1.49

  13. El. 300. Dyer.
• n) 1.50

  11. El. 283. Dyer.
• nn) 1.51

  Phil. Deci. in Comm. ad Regul. iur.
• * 1.52

  1 That by the cōmon law a grant that is not good at the first may not be made good by mat∣ter ex post fa∣ct••, neither by the Ciuil Law.
• o) 1.53

  5. E. 3. 34.
• p 1.54

  13. E. 3. Bro. Iointen. 63.
• q 1.55

  l. 15. E. 3. Fe∣offement. 63.
• r 1.56

  2. R. 3 5.
• * 1.57

  Phili. Decr. Comment. ad reg. iur.
• * 1.58

  1 Whether a tenant at will may graunt o∣uer his estate.
• * 1.59

  2 That the estate of the tenant at will is in maner no estate.
• s 1.60

  27. H. 6. 3.
• t 1.61

  11. E. 43:
• u 1.62

  22. E. 4. 5. per Brian.
• * 1.63

  12. E. 4. 5.
• x) 1.64

  14. H. 8. 11.
• y) 1.65

  l. qui se pa∣tris C. vnde li∣beri.
• z 1.66

  C. de sum∣ma tri. & fide Cathol. l. 1.