THE CASE OR REVOCATION OF USES. IN THE KING'S BENCH. The Case shortly put, without names or dates more than of necessity, is this. SIR John Stanhope conveys the manor of Burroughash to his lady for part of her jointure, and intending, as is manifest, not to restrain himself, nor his son, from disposing some proportion of that land according to their occasions, so as my lady were at no loss by the exchange, inserteth into the conveyance a power of revocation and alteration in this manner: provided that it shall be lawful for himself and his son successively to alter and make void the uses, and to limit and appoint new uses, so it exceed not the value of 201. to be computed after the rents then answered: and that immediately after such declaration, or making void, the feoffees shall stand seised to such new uses: Ita quod he or his son, within six months after such declaration, or making void, shall assure, within the same town, tantum terrarum et tenementorum, et similis valoris, as were so revoked, to the uses expressed in the first conveyance. Sir John Stanhope his son revokes the land in Burrough-ash, and other parcels not exceeding the value of 201. and within six month assures to my lady and to the former uses Burton-joice and other lands; and the jury have found that the lands revoked contain twice so much in number of acres, and twice so much in yearly value, as the new lands, but yet that the new lands are rented at 217. and find the lands of Burrough ash, now out of lease formerly made: and that no notice of this new assurance was given before the ejectment, but only that Sir John Stanhope had by word told his mother, that such an assurance was made, not shewing or delivering the deed. The question is, Whether Burrough-ash be well revoked? Which question divides itself into three points. First, whether the ita quod be a void and idle clause? for if so, then there needs no new assurance, but the revocation is absolute per se. The next is, if it be an effectual clause, whether it be pursued or no? wherein the question will rest, whether the value of the re-assured lands shall be only computed by rents? And the third is, if in other points it should be well pursued, yet whether the revocation can work until a sufficient notice of the new assurance? And I shall prove plainly, that ita quod stands well with the power of revocation; and if it should fall to the ground, it draws all the rest of the clause with it, and makes the whole void, and cannot be void alone by itself. I shall prove likewise that the value must needs be accounted not a tale value, or an arithmetical value by the rent, but a true value in quantity and quality. And lastly, that a notice is of necessity, as this case is. I will not deny, but it is a great power of wit to make clear things doubtful; but it is the true use of wit to make doubtful things clear, or at least to maintain things that are clear, to be clear, as they are. And in that kind I conceive my labour will be in this case, which I hold to be a case rather of novelty than difficulty, and therefore may require argument, but will not endure much argument: but to speak plainly to my understanding, as the case hath no equity in it, I might say piety, so it hath no great doubt in law. First therefore this it is, that I affirm, that the clause, so that, ita quod, containing the recompense, governs the clause precedent of the power, and that it makes Hill and case, com. f. 171. it wait and expect otherwise than as by way of inception, but the effect and operation is suspended, till that part also be performed: and if otherwise, then I say plainly, you shall not construe by fractions; but the whole clause and power is void, not in tanto, but in toto. Of the first of them I will give four reasons. The first reason is, that the wisdom of the law useth to transpose words according to the sense; and not so much to respect how the words do take place, but how the acts, which are guided by those words, may take place. Hill and Graunger's case comment. 171. A man Graunger's in August makes a lease rendering 101. rent yearly to be paid at the feasts of Annunciation and Michaelmas; these words shall be inverted by law, as if they had been set thus, at Michaelmas and the Annunciation: for else he cannot have a rent yearly; for there will be fourteen months to the first year. Fitz-Wil 2 Jac. Co. p.6. f. ss. Fitz-Williams's case, 2 Jac. Co. p. 6. f. 33. it was liams's case, contained in an indenture of uses, that Sir William Fitz-Williams should have power to alter and change, revoke, determine, and make void the uses limited: the words are placed disorderly; for it is in nature first to determine the uses, and after to change them by limitation of new. But the chief question being in the book, whether it might be done by the same deed; it is admitted and thought not worth the speaking to, that the law shall marshal the acts against the order of the words, that is, first to make void, then to limit. So if I convey land and covenant with you to make farther assurance, so that you require it of me, there though the request be placed last, yet it must be acted first. So if I let land to you for a term, and say farther, it shall be lawful for you to take twenty timber-trees to erect a new tenement upon the land, so that my bailiff do assign you where you shall take them; here the assignment, though last placed, must precede. And therefore the grammarians do infer well upon the word period, which is a full and complete clause or sentence, that it is complexus orationis circularis: for as in a circle there is not prius nor posterius, so in one sentence you shall not respect the placing of words; but though the words lie in length, yet the sense is round, so as prima erunt novissima, et novissima prima. For though you cannot speak all at once so, yet you must construe and judge upon all at once. To apply this; I say these words, so that, though loco et textu posteriora, yet they be potestate et sensu priora: as if they had been penned thus, that it shall be lawful for Sir Thomas Stanhope, so that he assure lands, etc. to revoke; and what difference between, so that he assure, he may revoke; or, he may revoke, so that he assure: for you must either make the so that to be precedent or void, as I shall tell you anon. And therefore the law will rather invert the words, than pervert the sense. But it will be said, that in the cases I put, it is left indefinite, when the act last limited shall be performed; and so the law 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 in deed in time after the instrument or deed of the declaration; but, on the other side, it must be 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, etc. 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 4 E. 6. Pl. .Com. Col thurst's case. 42 Eliz. Co. P. 1. f. 173. 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 or 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 inrolled within six months, this is all one, as by deed inrolled within six Digg's case, months, as it is said in Digg'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 faciendus, 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 1000/. 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, |