| 1491.015 |
1491 |
Common Pleas |
Quare impedit |
Quare impedit
Uses
Diversite
Quaere |
Townshend, Roger JCP
Bryan, Thomas CJCP Brian
Vavasour, John JCP Vavisor
Townshend, Roger JCP Townsend |
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Fitzherbert Graunt 39
Brooke Feoffements al uses 43 |
Hil. 43 Edw. 3, 1369.004 = Hil. 43 Edw. 3, pl. 4, fol. 1b-2a
7 Hen. 6, fol. 52
10 Edw. 4, fol. 8
26 Hen. 8, fol. 2
7 Edw. 4, fol. 14 contra
5 Hen. 7, fol. 37
43 Edw. 3, fol. 1 (twice)
11 Hen. 6, fol. 5, accord
7 Edw. 4, fol. 14
Plowden, Commentaries 172 b (next plea?)
Rastel 131 (next plea?)
Perkins, Profitable Boke 151, 165 (next plea?)
20 Hen. 6, fol. 33 (next plea?) |
the statute: = perhaps 1 Ric. 3 (1484), ch. 1, 2 Stat. Realm 477 (if one being of full age, of sane memory, and out of prison makes a feoffment or grant (as cestuy que use?) the grant is good against the grantors, and their heirs, their feoffors, and their heirs) (ou le feffee est seisi solement al' use) |
| En un Quare impedit fuit tenu clerement, que si on est seisi al' use de une feme de un Avowson, & ele |
22 |
Car in conscience l' terre fuit al feoffor, mes nemy in fait de donne, ne grante, mes or le Statut est, que il poit donne & grante, & donq l' entente de le Statut est or, que le feoffor poit faire tiel chose ove le tere, rent ou ascun auter chose, dont auter est seisi a son use, come il mesme fuit seisi
Townshend JCP: Le grant le feme del' Avowson est bon: car il ad passe per livery & seisin del' Eglise per le anneau (= ring) del' huis (= door), & ceo est tenu come jeo croy Hil. 43 Edw. 3
Bryan CJCP: N' est ascun doubte mes a cest jour advowson per grant passe bien, & bon s' il soit in fee, ,ou a term de vie ou auterment, donq si cest passe per grant, coment poit cest passe per livery?; Ceo ne poit estre: car rent passe per grant, donc ceo ne poit passe per livery, car 'oppositum in objecto' (self-contradiction): & issint il dit nul question que advowson ne poit passer per livery
Quod Vavasour JCP concessit:
& Townshend JCP non negavit |
it was held clearly that if one is seised to the use of a woman (feme, wife, widow) of an advowson, and she marries (prend baron), the husband and the wife can grant (the advowson), and during the marriage (espousels) the grant is good, because even though the wife's grant is not good, yet the husband's grant is good duirng the marriage (l' coverture); because even though the statute (perhaps 1 Ric. 3 (1484), ch. 3, 2 Stat. Realm 477 (or perhaps 4 Hen. 7 (1489), ch. 17)) provides: 'where the feoffee is seised solely to the use' etc. and so here it is to the husband to the wife, that is, to the husband in right of his wife, and to the wife in her own right, and this statute goes as well as it can according to the common law; because in conscience the land was to the feoffor, but not in deed of gift, nor grant, but now the statute is (that the cestuy que use) can give or grant, and so the intent of the statute is now that the feoffor (to uses) can do such things with the land, rent, or any other thing, of which another is seised to his use, as if he himself (cestuy que use) was seised; if the husband and the wife were seised themselves as in right of his wife the husband could grant (an advowson) as (come, like) a rent etc. (but) the wife's grant is void; but of a thing that passes by livery (of seisin) it is otherwise, such as land (there) she (wife) could join with her husband, and reserve a rent, and receive (recevoir, recover?) it well after her husband's death, but of a grant by the wife (feme) it is otherwise; and at least even though the wife's grant be void, yet (such a grant) by the husband is good, because if the wife had been seised in fact, then etc. and to my thinking now the statute provides (va), etc.
Townshend JCP: the wife's grant of the advowson is good, because it had passed by livery of seisin (livery & seisin) from the church by the right (anneau) on the door (huis) (doorknocker), and this is held, as I believe Hil. 43 Edw. 3 (1369.004 = Hil. 43 Edw. 3, pl. 4, fol. 1b-2a)
Bryan CJCP: there is not any doubt but at this day an advowson passes well by grant, and a good (grant) if it (advowson be granted) in fee or for a term of life or otherwise, so if this (advowson) passed by grant, how can this pass by livery (of seisin)?; this cannot be, because a rent passes by grant, so this cannot pass by livery (of seisin), because 'oppositum in objecto', and so he (Bryan CJCP) said (there was) no question that an advowson could not pass by livery (of seisin)
which Vavasour JCP agreed
and Townshend JCP did not deny
(Bryan CJCP, continuing:) but the incumbent (clerk) will take livery (of the church) by the ring (anneau) on the door (del' huis) when he is inducted, this is the usage, etc.
Reporter (R.): query, if one seised to the use of the husband and his wife as in right of his wife, where the husband and his wife can make feoffment, and if they can (enfeoff) by the statute, which remedy by the widow (feme) after the husband's death, if she (wife, now widow) did not consent to this (content); and Sir, a married woman (feme covert) is not an exception in the statute, but an infant, and one in prison (are exceptions in the statute)
see (the) statute |
Holding
Clarity
Seisin
Use (use)
Seised To The Use Of Another
Wife
Woman
Advowson
Seised Of Advowson
Marriage (prend baron)
Taking Husband
Husband
Grant
Duration
Espousals
Good Grant
Bad Grant
Coverture
Statute
Feoffee
Solely
Seised Solely To The Use
Feoffee To Uses
Right
Right Of His Wife
Own Right
As Well As
Accordingly
Common Law
According To Common Law
Conscience
In Conscience
Feoffor
Deed
Gift
Deed of Gift
Give and Grant
Intent
Intent Of The Statute
Do Thing
Rent
Voidance
Void Grant
Passing
Livery
Livery Of Seisin (livery & seisin)
Joinder
Joining With Her Husband
Reservation
Reserving
Rent Reserved
Receipt
Recovery
Death (mort)
Wife's Grant
Otherwise
At Least (al' moins)
In Fact
Seisin In Fact
Church
Ring (anneau)
Door
Doorknocker
Knocker
Belief (croy)
Doubt
No Doubt
Day
Passing Well
In Fee
Fee
Term Of LIfe
By Grant
By Livery
Oppositum In Objecto
Self Contradiction
Self-Contradiction
Question
No Question
Agreement (concessit)
Denial
Non-Denial
Incumbent
Taking Livery
Induction
Usage (use)
Reporter (R.)
Query
Feoffment
Making Feoffment
Remedy
Consent (contente)
Feme Covert
Married Woman
Exception
Infant
Prison
Prisoner |
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