Colthurst's case. Plowd. f. 21. Digg's case, 1 Co. 173. may marshal it as it may stand with possibility; and so if it had been in this case no more but, "so that Sir Thomas or John should assure new lands," and no time spoken of, the law might have intended it precedent; but in this case it is precisely put to be at any time within six months after the declaration, and therefore you cannot vary in the times. To this I answer that the new assurance must be indeed in time after the instrument or deed of the declaration, but on the other side, it must be in time precedent to the operation of the law by determining the uses thereupon. So as it is not to be applied so much to the declaration itself, but to the warrant of the declaration,-it shall be lawful, so that &c. And this will appear more plainly by my second reason, to which now I come; for as for the cavillation upon the word immediately, I will speak to it after. My second reason therefore is out of the use and signification of this conjunction or bond of speech, so that: for no man will make any great doubt of it, if the words had been si,-" if Sir Thomas shall within six months of such declaration convey," but that it must have been intended precedent; yet if you mark it well, these words ita quod and si, howsoever in propriety the ita quod may seem subsequent and the si precedent, yet they both bow to the sense. So we see in 4 Edw. VI. Colthurst's case. A man leaseth to J. S. a house, si ipse vellet habitare et residens esse: there the word si amounts to a condition subsequent, for he could not be resident before he took the state; and so via versa may ita quod be precedent, for else it must be idle and void. But I go farther, for I say ita quod, though it be good words of condition, yet more properly it is neither condition precedent, nor subsequent, but rather a qualification, or form, or adherent to the acts whereto it is joined, and made part of their essence; which will appear evidently by other cases. For allow it had been thus, so that the deed of declaration be enrolled within six months, this is all one as by deed inrolled within six months, as it is said in Diggs's case, 42 Eliz. f. 173., that "by deed indented to be inrolled" is all one with "deed indented and inrolled:" it is but a modus faciendi, a description, and of the same nature is the ita quod. So if it had been thus, it shall be lawful for Sir Thomas to declare, so that the declaration be with the consent of my lord chief justice, is it not all one with the more compendious form of penning, that Sir Thomas shall declare with the consent of my lord chief justice? And if it had been thus, so that Sir John within six months after such declaration shall obtain the consent of my lord chief justice, should not the uses have expected? But these you will say are forms and circumstances annexed to the conveyance required; why surely any collateral matter coupled by the ita quod is as strong. If the ita quod had been, that Sir John Stanhope within six months should have paid my lady one thousand pounds, or entered into bond never more to disturb her, or the like; all these make but one entire idea or notion, how that his power should not be categorical, or simple at pleasure, but hypothetical, and qualified, and restrained, that is to say, not the one without the other; and they are parts incorporated into the nature and essence of the authority itself. The third reason is, the justice of the law in taking words so as no material part of the parties' intent perish. For as one saith, præstat torquere verba, quam homines, better wrest words out of place than wrest my Lady Stanhope out of her jointure, that was meant to her. And therefore it is elegantly said in Fitzwilliams's case which I vouched before; though words be contradictory, and (to use the phrase of the book) pugnant tanquam ex diametro, yet the law delighteth to make atonement, as well between words as between parties, and will reconcile them, so as they may stand, and abhorreth vacuum, as well as nature abhorreth it; and as nature, to avoid vacuum, will draw substances contrary to their propriety, so will the law draw words. Therefore saith Littleton, if I make a feoffment reddendo rent to a stranger, this is a condition to the feoffor, rather than it shall be void; which is quite cross; it sounds a rent, it works a condition; it is limited to a third person, it inureth to the feoffor. And yet the law favoureth not conditions, but to avoid vacuum. So in the case of 45 E. III. a man gives land in frank-mar- 5 E. 3, riage, the remainder in fee. The frank-marriage is first put, and that can be but by tenure of the donor; yet rather than the remainder should be void, though it be last placed, the frank-marriage being but a privilege of estate shall be destroyed. So 30 H. VI. Tressham's case. The King granteth a wardship, before it fall; good, because it cannot inure by covenant, and if it should not be good by plea, as the book terms it, it were void so that, no not in the King's case, the law will not admit words to be void. So then the intent appears most plainly, that this act of Sir John should be actus geminus, a kind of twin' to take back, and to give back, and to make an exchange, and not a resumption; and therefore upon a conceit of repugnancy, to take the one part which is the privation of my lady's jointure, and not the other which is the restitution or compensation, were a thing utterly injurious in matter, and absurd in construction. The fourth reason is out of the nature of the conveyance,which is by way of use, and therefore ought to be construed more favourably according to the intent, and not literally or strictly for although it be said in Freine and Dillon's case, and in Fitzwilliams's case, that it is safe so to construe the statute of 27 H. VIII. as that uses may be made subject to the rules of the common law, which the professors of the law do know, and not leave them to be extravagant and irregular; yet if the late authorities be well marked, and the reason of them, you shall find this difference, that uses, in point of operation, are reduced to a kind of conformity with the rules of the common law; but that, in point of exposition of words, they retain somewhat of their ancient nature, and are expounded more liberally according to the intent; for with that part the statute of 27 doth not meddle. And therefore if the question be, whether a bargain and sale upon condition be good to reduce the state back without an entry, or whether, if a man make a feoffment in fee to the use of John a Style for years, the remainder to the right heirs of John a Downe, this remainder be good or no; these cases will follow the grounds of the common law for possessions, in point of operation; but so will it not be in point of exposition. For if I have the manor of Dale and the manor of Sale, lying both in Vale, and I make a lease for life of them both, the remainder of the manor of Dale and all other my lands in Vale to John a Style, the remainder of the manor of Sale to John a Downe, this latter remainder is void, because it comes too late, the general words having carried it before to John a Style. 1 "Twyne" in the MS., which the editions print "twine." I cannot myself attach any meaning to this reading, and therefore, guided by the preceding geminus, have printed "twin." The case of the manor of Odiam. But put it by way of use; a man makes a feoffment in fee of both manors, and limits the use of the manor of Dale and all the other lands in Vale to the use of himself and his wife, for her jointure; and of the manor of Sale to the use of himself alone. Now his wife shall have no jointure in the manor of Sale, and so was it judged in the case of the manor of Odiam.1 And therefore our case is more strong, being by way of use; and you may well construe the latter part to control and qualify the first, and to make it attend and expect; nay, it is not amiss to see the case of Peryman, 41 Eliz. Coke, p. 5. 5 Co. f. 81. f. 84. where by custom a livery may expect; for the case was, that in the manor of Portchester the custom was, that a feoffment of land should not be good, except it were presented within a year in the court of the manor; and there ruled that it was but actus inchoatus, till it was presented. Now if it be not merely against reason of law, that so solemn a conveyance as livery, which keeps state (I tell you), and will not wait, should expect a farther perfection, a fortiori may a conveyance in use or declaration of use, receive a consummation by degrees, and several acts. And thus much for the main point. Now for the objection of the word immediate; it is but light and a kind of sophistry. They say that the words are, that the uses shall rise immediately after the declaration, and we would have an interposition of an act between, viz: that there should be a declaration first, then a new assurance within the six months, and lastly the uses to rise: whereunto the answer is easy; for we have showed before that the declaration and the new assurance are in the intent of him that made the conveyance, and likewise in eye of law, but as one compounded act. So as immediately after the declaration must be understood of a perfect and effectual declaration, with the adjuncts and accouplements expressed. So we see in 49 E. III. f. 11. if a man be attainted of felony 49 E. 3. f. 11. that holds lands of a common person, the King shall have his year, day, and waste: but when? Not before an office found. And yet the words of the statute of prærogativa regis are, Rex habebit catalla felonum, et si ipsi habent liberum tenementum statim capiatur in manus domini, et rex habebit annum, diem et vastum and here the word statim is understood of the effectual and lawful time, that is, after office found. 1 Probably Odiham. 2 H. 4. f. 17. 27 H. 8. f. 19. Jermin and So in 2 H. IV. f. 17. it appears that by the statute of Acton Burnell, if the debt be acknowledged, and the day past, that the goods of the debtors shall be sold statim, in French maintenant; yet nevertheless this statim shall not be understood, not before the process of law requisite passed, that is, the day comprised in the extent. So it is said 27 H. VIII. f. 19. by Audley the Chancellor, that the present tense shall be taken for the future; a fortiori say I the immediate future tense may be taken for a distant future tense. As if I be bound that my son being of the age of twenty-one years shall marry your daughter, and that he be now of twelve years; yet this shall be understood, when he shall be of the age of twenty-one years. And so in our case, immediately after the declaration is intended, when all things shall be performed that are coupled with the said declaration. But in this I doubt I labour too much; for no man will be of opinion that it was intended that the Lady Stanhope should be six whole months without either the old jointure or the new; but that the old should expect until the new were settled without any interim. And so I conclude this course of atonements (as Fitzwilliams's case calls it); whereby I have proved that all the words, by a true marshalling of the acts, may stand according to the intent of the parties. And I may add tanquam ex abundanti, that if both clauses do not live together, they must both die together; for the law loves neither fractions of estates nor fractions of constructions. therefore in Jermin and Askew's case, 37 Eliz., a man did case. 37 Eliz. devise lands in tail with proviso, that if the devisee did attempt to alien, his estate should cease, as if he were naturally dead. Is it said there that the words as if he were naturally dead shall be void, and the words that his estate shall cease, good? No, but the whole clause shall be void. And it is all one reason of a so that, as of an as if, for they both suspend the sentence. So if I make a lease for life, upon condition he shall not alien, nor take the profits, shall this be good for the first part, and void for the second? No, but it shall be void for both. So if the power of declaration of uses had been thus penned; that Sir John Stanhope might by his deed indented declare new uses, so that the deed were inrolled before the Mayor of St. Albans, who hath no power to take inrolments; or so that the deed were made in such sort, as might not be made void |