A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...

The second Dialogue of Gifts and Graunts.

NOmomathes.

In handeling the lear∣ning of Gifts and Graunts, I think it most fit in the first place to be in∣quired what things may be giuen or graunted, wherefore first I pray you satisfie me in this.

Codicgn.

A man may giue all such thinges as an other may receiue: a for dare & accipere sunt correlatiua: and all such things may be receiued which lie in commerce.

Nomomat.

Then thinges consecrated and ec∣clesiasticall may not be aliened, because they lye not in contract.

Canonologus,

Thinges ecclesiasticall though they be not consecrate, cannot regularly be giuen or graunted, b and I did vse this worde (regularly) because where such alienation may bring profit to the Church, it shall be of force. c

Anglonomo.

In our Lawe a writ of Contrafor∣mam alienationis lyeth where a man gaue landes or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum, to holde of him in frankalmoigne, and after the Abbot with the Couent did alien the same land in fee to another, nowe he 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 lande, but

when he hath recouered the lande, hee may sue a Scirefacias against the tenant of the freehold, d and this writ of Contra formam collationis lyeth not, though the Abbot doth alien in fee, vn∣lesse the Abbot and the Couent doe alien in fee, e 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 Con∣tra formam collationis. f

Nomom.

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

Anglonomoph.

They be of diuerse sortes: some are called free gifts, which proceede merely of a mans good will and beneuolence: others may be called Compensatorie, because they are giuen for some cause or consideration: Gifts or graunts of the first kinde are such as I nowe shall recite out of our bookes. First, the Queene may graunt to one lande ex mero motu, 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 meerley supposed and not true, and therefore no good consideration in Law, yet the words ex mero motu do make the grant good, g 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 graunt was made: other∣wise it had bin if this worde (informamur) had bin vsed in reciting the graunt. h For if her high∣nesse graunt any thing vpon the false suggestion of the partie, this graunt is voide, because shee is deceiued in her graunt, i and wee haue a rule: Si suggestio non sit vera, literae patentes sunt vacuae. k For when the graunt is made vpon the sugge∣stion of the partie, the wordes of the graunt shal be taken strictely, 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 permitte, l and if a common person do without consideration giue to I. S. his goods (indefinitly) al his goods do passe, and if a common person doe by deede enrolled en∣feofee the Queene of his lands without any con∣sideration, the Queene shal be seised to her owne vse, as hauing such prerogatiue in her person, that she shall not bee seised to the vse of any o∣ther. m Gifts made vpon consideration may be ex∣plained by cases likewise drawne out of our bookes, though in a common persons case the consideration which is mencioned be false, yet the vse shall be to the feoffees as appeareth by Wilkeses case, who reciting by his deede falsely that in consideration of 700. li. payed, he had en∣feoffed A. and B. to haue and to holde to them and to their heires, to the proper vse and behoofe of the said A. and B. in perpetuum: afterwarde by Office it was founde that Wilkes was seised of

the lande, and that he helde 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 auncestor: n and so it hath beene helde in Villiers his case, that where mo∣ney is the consideration expressed an other con∣sideratiō shal not be auerred, neither shal a Causa matrimonij prelocuti be auerred where an other 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 And though the consideration be not valuable, yet it may bee 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 he may beget, and the affection which he hath that the lande may remaine in his bloud and name, be causes sufficient to make vses in the lande, for (as it is there said) Naturae vis maxima, & Natura bis maxima. p And so betwixt brethren pro fraterno a∣more is a good consideration to raise an vse, q and a man leuied a fine to the vse of himselfe, and such wife or wifes as he 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

Conono.

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

Ganonal.

By the Cannon Lawe nudum pactum doth binde the partie, especially being confirmed by an othe: much more a bare donation. rrr

Nomom.

As to the point of consideration wee shall better perceiue the strength and properties therof, when we enter into discourse of bargains and sales, now let me knowe in what cases and how farre forth graunts shalbe taken most bene∣ficially for the grauntee.

Anglonomoph.

When a graunt is non-certaine, it must be taken most strongly against the graun∣tor, for if a man graunt an annuitie out of cer∣taine lande, and he hath no lande▪ at the ••ime of the graunt, yet the graunt shal charge his person, s and if a deede of graunt be good in parcell, and for parcel not, that which is for the aduantage of the grauntee shalbe taken to be good, as if a man graunt vnto me an annuity, prouiso that it shall not charge his person, the prouiso is voide, and the graunt is good; t And if an annuitie be graun∣ted pro consilio impendendo, though the grauntee be well skilled in diuerse sciences or faculties, yet counsel shalbe giuen in that facultie only, which was intended at the time of the graunt, u 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 profit of the houses within it, the lessee cannot in this case take downe or de∣molishe the houses, nor make wast in them, for the intent was not so, a but if the King graunt to me visum franciplegij in omnibus terris meis, & fea∣dis,

I cannot haue this in any landes and tene∣ments, which I shall afterwards purchase, b But if the king graunt to a man that he and his heires shalbe quit of taxe for their landes which they haue, this is a good graunt though there be no taxe due at the time of the graunt, c And so is the Law of Tenths and fifteenes, d and he to whom the King graunteth a licence may not vary from the proper sense & the significancy of the words. e 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 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 Chapleines, but was not suf∣fered, g and 30. 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, rendering rent, but was not admit∣ted to it, because it coulde not stande with the licence, which was that all the Manour should bee charged with the rent, h So if the Queene licence one to make a Feoffement by deede, he cannot make it without deede, i 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 feoffour, k And a graunt is not to bee fauoured contrarie

to the euident & perspicuous sense of the words. For if a man graunt to an other 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 loade, hee is a wronge doer for two of them: so if a man graunt to an other a common for three beastes yearely, and hee taketh nothing the two first yeares, he shal not haue common for three beastes the third yeare. l The aduowson of the Hospitall of Saint Katherins is appendant to the Mannour of B. the Hospitall being voide the Queene graun∣teth manerium ac omnes aduocationes cum pertinen∣tijs, the present presentment doth not passe: m for it is fructus aduocationis, and not the aduowson it selfe. n

Codicgn.

The words of a graunt are to bee ta∣ken most strictly against the grauntor, because nn he might haue expressed his meaning in more full, large, and manifest words.

Nomom.

Nowe resolue me whether a graunt that is not good at the first may be made good by matter ex post facto.

Anglonomoph.

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

lande which the husbande holdeth for terme of life, and then attournement is had, the graunte is voide, and the attournement also. p And if a man be bound to a Fem̄ sole, and a straunger re∣leaseth to the obligour, and after maryeth the feme, yet the release is not good. q 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 void graunt, though he had bin after dereigned, or made Soueraigne of the same house, or some o∣ther. r

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. rr

Nomom.

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

Anglonomoph.

I thinke not: for it is not properly an estate because it wanteth certaintie, s 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 will, t and an other reason why he cannot grant 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 and his estate is such a non-estate in the eye of Law, that he cannot haue ayd of his lessor, w 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 void before, no more then his ac∣ceptance of a rent reserued vpon a lease for yeres which is determined by reentre, can make that lease good. x

Codicgn.

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

Canonologus,

So it is likewise in our Law. z

Nomom.

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

Notes

• 1. Diuision. 1 What things may be giuen or graunted.
• 2 That all things that lye in commerce and may be receiued may be giuen.
• a

  l. in aedibus §. fi. ff. Eo. tit.
• 3 That things ecclesiasticall though they be not consecrate cannot regu∣larly be graun∣ted.
• b

  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

  In dict. iur.
• 4 That if an Abbot did a∣lien lands gi∣uen in franke∣almoigne to his house the donor might haue a writ of Contra formam collationis.
• d

  Fitz. na. br. 210. f.
• e

  19. E. 3. Con∣tra formam col∣lationis. 5. Fitz. nat. br. 211. c.
• f

  20. E. 3. Con∣tra form. collat. 6
• 2. Diuision.
• 1 The diuerse kinds of giftes, some being fre some compen∣satory.
• 2 What is wrought by the Queenes graunt ex me∣ro motu.
• g

  26. H. 8. 1. per Fitz.
• 3 What is wrought by her Maiesties graunt by words of In∣formamur.
• h

  9. H. 7. 2.
• i

  11. E. 4. 1. per Littlet'.
• k

  3. H. 7. 6.
• l

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

  28. H. 8. 7. Dyer Boken∣hams case per Knightley.
• 4 Whether vpon a false consideration expressed an vse shalbe rai∣sed in a com∣mon persons case.
• n

  1. Eliz. 169. Dy. Wilk. case.
• 5 That a con∣sideration may be auerred which is not repugnant to the vse ex∣pressed.
• o

  4. Mar. 146. Dy, Villier case
• 6 That an vse may be altered by a conside∣ration not va∣luable.
• p

  8. Eliz. 298. Com̄: Shering∣tons case.
• q

  13. Eliz. 302. Dyer.
• r

  10. Eliz. 274 Dy. per Wray, Mead, Plow∣den, & Owns∣law, & 3. Eliz. 100. Dame Brayes case.
• rr

  l. hoc iure in princi. ff. de donat. Gl. in d: l. hoc iure: et l. Campanus ff. de oper: li∣bert:
• rrr

  c. 1. de pact▪
• 3. Diuision.
• 1 In what ca∣ses graunts shalbe taken most benefici∣ally for the grauntee.
• 2 That a grant non certaine must be taken most strongly against the grauntor.
• s

  9. H. 6. 12. p Babingt.
• 3 That a grāt may be good in part, and for parcel not.
• t

  20. E. 4. 8. p Towns. 14. H. 4. 30. p Hank.
• u

  41. E. 3. 6. Annuit••e 19.
• a

  17. E. 3. 17.
• b

  38. H. 6. 10.
• 4 Howe the •• Queens grants and licences shalbe con∣strued and in∣terpreted.
• c

  Ibid:
• d

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

  18. E. 2. Fines 124.
• f

  21. H. 7. 8.
• g

  3. E. 3. 5.
• h

  30. E. 3. 17.
• i

  21. H. 7. 8. per Frowike.
• k

  12. Ass. p•• 24
• 5 That a graunt is not to be fauoured contrary to the manifest sense of the words.
• l

  27. H. 6. 10.
• m

  13. Eliz▪ 300. Dyer.
• n

  11. Elizab. 283. Dyer.
• nn

  Phil. Deci. in Comm. ad Regul. iur.
• 4. Diuision.
• 1 That by the common law a graunt that is not good at the first may not be made good by mat∣ter ex post fa∣cto, neither by the C••uil Law.
• o

  5. E. 3. 34.
• p

  13. E. 3. Bro▪ Iointen. 63.
• q

  15. E. 3. Fe∣offem̄t 63.
• r

  2. R. 3. 5.
• rr

  Phili. Decr. Comment. ad reg. iur.
• 5. Diuision. 1 Whether a tenant at wil may graunt o∣uer his estate.
• s

  27. H. 6. 3.
• 2 That the estate of the tenant at will is in maner no estate.
• t

  11. E. 4. 3.
• u

  22. E. 4. 5. per Brian.
• w

  12. E. 4. 5.
• x

  14. H. 8. 11.
• y

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

  C. de sum∣ma tri. & side cathol. l. 1.