the said Goodale that this Warrant was made to him: After which it was a∣greed between the said Sir Ioh Packington & Drew Woodale, that the said Tho. Drew shall have but 32 l. of the said 100. marks, wherupon the said Sir Iohn Packington within a year after the death of the said Ralph Woodliff paid to the said Drew Woodliff the 100. marks, and presently the said Drew delivered to the said Sir John all the 100. marks but 32 l. And the Verdict stands upon this point, whether the 100. marks were well paid, or not.
And by Popham and Gawdy this was meerly a fraud which shall never prejudice a third person, for if it be agreed between the Disseisee and I. S. that a stranger shall disseise the Tenant of the Land, and enfeoff the said I. S. to the intent that the Disseisee shall recover against him, this Recovery shall bind the said I. S. but not him who was disseised, and yet he who recovered had a good Title, and paramount the other, but he shall not come to that to which he had good cause of Action and Title by fraudulent means, to the pre∣judice of a third person, not party to this fraud.
And it was said further, that to pay money, and take it away again present∣ly before that it is pursed up by re-delivery, is not properly a payment, but rather a colour of payment.
And by Fennor and Popham, the force of a Deed of Feoffment once effectu∣all, cannot become void or of no effect, nor the Livery therupon by such manner of words. And it is not like a Bargain of Goods, or an Obligati∣on, or a Lease for years, which by such words may be dissolved and made to be of no force or effect, because that as by the sealing a bare Contract, it may be made perfect and effectuall without other circumstances, so may it be defea∣ted by such bare means without other circumstance: But so it is not in case of an Inheritance or Free-hold, which cannot be effectual by the bare delivery of a Deed, unlesse that Livery be made therupon.
And all agreed, that as this case is, notwithstanding the Feoffment made o∣ver by the Father, the money might have been paid to the Heir to perform the Condition, if they had been duly paid, and without Covin, and that the words had been apt to have defeated the Estate.
But by Popham and Clench, If a Feoffment be made to one upon conditi∣on of payment of money to the Feoffee, his Heirs or Assignes and the Feof∣fee makes a Feoffment over, and dies, the money ought to be paid to the Feoffee who is the Assignee, and not to the Heir, for there (Heir) is not named but in respect of the Inheritance which might be in him, but here he is named as a meer stranger to it.