Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Kettle versus Mason, and Esterby.

6. IN a second deliverance between Joh. Kettle Plaintiff, and George Mason and Francis Esterby, Avowants, the case appeared to be this: Thomas May was seised of the Mannor of Sawters and Hawlin, in the County of Kent, in his Demesne as of Fee, and being so therof seised, enfeoffed Thomas Scot and John Fremling and their Heirs, to the use of Dennis May his Son and Heir apparant and his Heirs, upon condition, that the said Dennis and his Heirs should pay to one Petronell Martin for his life, an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell, to begin upon the death of the said Thomas; And upon condition also, that the said Thomas upon the payment of 10 s. by him to the said Feoffees, or any of them &c. might re-enter: After which the said Thomas May and Dennis, by their Deed dated 30. May, 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life, after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid, and therupon re-entred into the Land and enfeoffed a stranger: And whether by this the Rent were defeated, was the question: And it was mooved by Coke Attorney-generall that it was not, but that in respect that he joyned in the part, it shall enure against the said Thomas by way of confirmation, which shall bind him as well against this matter of Condition, as it shall do against any Right which the said Thomas otherwise had. And therfo••e by Littleton, If a Disseisor make a Lease for years, or grant a Rent-charge, and the Disseisor confirm them, and afterwards re-enters; albeit Lit. there makes a Quaere of it, yet Cook said, That the Disseisor should not avoid the Charge, or Lease which was granted by the whole Court. And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition, and afterwards is bound in a Statute, upon which Execution is sued, and afterwards he re-enter for the Condition bro∣ken, he shall not avoid the Execution, no more the Rent here.

Fennor agreed with Cook, and said further, That in as much as every one who hath Title and Interest have joyned in the Grant, it remains perpetually good.

And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory, being confirmed by the Patron and Ordinary, it shall be good in perpetuity, and yet the Parson alone could not have charged it, and the Patron and Ordinary have no Interest to charge it, but in as much as all who have to intermeddle therin are parties to it, or have given their assent to it, it sufficeth.

Gawdy was of the same opinion, and said, That there is no Land but by some means or other it might be charged, and therfore if Tenant for life grant

a Rent-charge in Fee, and he in the Reversion confirm the Grant, per Little∣ton, the Grant is good in property, so here.

To which Clench also assented, but Popham said, That by the entry for the Condition, the Charge is defeated: And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation, to what effect a Con∣firmation shall enure, and this is to bind the right of him who makes the Confirmation, but not to alter the nature of the Estate of him to whom the Confirmation is made; And therfore in the case of a grant of a Rent-charge by the Disseisor, which is confirmed by the Demisee: the rea∣son why the Confirmation shall make this good, is, because that as the Dis∣seisee hath right to defeat the right and the Estate of the Disseisor by his Re∣gresse, in the same manner hath he right therby to avoid a Charge, or a Lease granted by the Disseisor, which Right for the time may be bound by his con∣firmation. But when a man hath an Estate upon condition, although the Feoffor, or his Heirs confirm this Estate, yet by this the Estate is not alte∣red as to the Condition, but it alwaies remaineth, and therfore Nihil ope∣ratur by such a confirmation to prejudice the Condition. And so there is a great diversity, when hewho confirmeth, hath right to the Land, and where but a Condition in the Land. And by him, if a Feoffee upon condition make a Feoffment over, or a Lease for life or years, every one of these have their Estates subject to the Condition; and therfore by a Confirmation made to them, none can be excluded from the Condition: And the same reason is in case of a Rent granted by a Feoffor upon Condition, it is also subject to the Condition, and therfore not excluded from it by the Confirmation, as it shall be in case of a Right.

And to prove this diversity, suppose there be Grand-father, Father, and Son, the Father disseise the Grand-father, and makes a Feoffment upon Condition, and dies, after which the Grand-father dies, now the Son con∣firms the Estate of the Feoffee, by this he hath excluded himself from the Right which descended to him by his Grand-father, but not to the Conditi∣on which descended to him from his Father.

And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet, for the principall Case upon the Case moved there, by Popham this Term: And as the case is, it would have made a good question upon the Statute of Fraudulent Conveyances, if the Avowry had been made as by the grant of Thomas May, in as much as the Estate made to the use of Dennis, was defeasable at the pleasure of the said Thomas, in as much as it was made by the Tenant of the Land, as well as by him who made the Conveyance, which is to be judged fraudulent upon the Statute. But this as the plea∣ding was, cannot come in question in this case: And afterwards by the opi∣nion of other three Iudges, Iudgment was given that the Grant should bind the said Thomas May, and his Feoffees after him, notwithstanding his re∣gresse made by the Condition, in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation.

And by Gawdy, If a Feoffee upon Condition make a Feoffment over, and the first Feoffor confirm the Estate of the last Feoffee, he shall hold the Land discharged of the Condition, because his Feoffment was made absolutely without any Condition expressed in his Feoffment.

But Popham denied this, as it appeareth by Littleton Tit. Descents, be∣cause he hath his Estate subject to the same Condition, and in the same man∣ner as his Feoffor hath it, into whomsoever hands it hapneth to come, and therfore the Confirmation shall not discharge the Condition, but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition.

Notes

• Vide this case Coke lib. 1. 146, &c.