AALT Home             The Statute of Uses before the Statute of Wills

Branstell et al. v. Haughton (Easter term, 1540)



AALT Images: 0879, 0880, 1860, 1861, 0881,

Hypothetical Reconstruction

         A hypothetical reconstruction only conveys one possible scenario behind the case that would make the events plausible. Such a reconstruction is not fact, but only a relation of one possibility that seems likely because it would have both sides operating in relatively good faith. Whether a hypothetical reconstruction was actual fact could only be determined by discovery of additional evidence.

         The hypothetical reconstruction plausible here would be that Robert Say was, perhaps, a feoffee to uses who had become the sole surviving feoffee. When he died, his documents only recorded the feoffment by which he gained the necessary title at common law, not the fact that he only held that title to the use of another. Thus, when his children took, they (or their lawyers) deduced that he had been owner as such, so that the property would have descended to them and they thus became the plaintiffs in this case. John Houghton, the person who managed the affairs of the beneficiary, re-established the use by procuring the feoffment of feoffees to use: this time, Roger Say (probably a relatively but not a son of Robert Say) and John Day. Say and Day then conveyed their interest as feoffees to uses to a new set of feoffees to uses: Thomas Shaxton and two others. The beneficiary of the use was Thomas Shaxton, one of the feoffees. The single matter that would resolve the whole dispute, thus, was whether Houghton disseised Robert Say’s heirs when he entered for the beneficiary and re-established the use.

         Once again, this scenario is hypothetical only, but it would provide a factual situation that would have both sides operating in plausible good faith and yield the issue on which the whole case rests. The supposed grant by Says and Day for life to the plaintiffs as described in the defendant’s plea was solely required by pleading rules and should not be taken as an indicator of anything that either side supposed was actually done. This hypothetical reconstruction is irrelevant to the next section on the case and the Statute of Uses: even if it should turn out that the scenario in fact was very different, the analysis in regard to the Statute of Uses would remain the same.

         No jury verdict is recorded, so the resolution of the issue about the disseisin is unknown.

 

This case as it relates to the Statute of Uses

         The events that would determine this case took place prior to the Statute off Uses; both plaintiffs and defendant were agreed on the sequence of events after the Statute of Uses. The legal effect of those post-statute events differ depending on whether, prior to the statute, Houghton had in law disseised the plaintiffs. Both sides thus agreed that

(a) Say and Day enfeoffed Thomas Shaxton and the two others to the use of Shaxton prior to the statute,

(b) the Statute of Uses thereafter made Shaxton’s beneficial interest into a legal interest in fee simple and eliminated the role of the feoffees to uses,

(c) Shaxton, seised then of a legal fee simple, enfeoffed after the Statute of Uses one Robert Grene in fee simple to he held to the use of Shaxton himself for 22 years and then to the use of William his son in fee. Apparently at the same time as the feoffment, Shaxton executed his will that made Houghton his executor (which will would have disposed in some way of the income to be derived during the 22 years of the leasehold). Neither plaintiffs nor defendant indicated that the Statute of Uses had any effect whatsoever on this use: Grene continued as tenant in fee simple in use for that term and William the son’s interest.

(d) Houghton, the defendant, was thus not seised, but only possessed of the property as executor or conceivably as bailiff. His actions in that capacity are not challenged as such, only his actions prior to the Statute of Uses that would, of course, in the plaintiffs’ version of events, have disabled all his subsequent activity. If his activity prior to the Statute of Uses was lawful, however, all his subsequent activity was likewise lawful.

The conclusions about the Statute of Uses available from this case are thus

(a) that as early as 1537 at least some people had concluded that one could still create a use of some kind in which the beneficial interests of the use would not be made immediately into a legal interest and in which the role of the feoffees to uses would continue,

(b) that the uses that still could be created and endure as in (a) related to a beneficial interest in a term of years (even though the feoffees to uses of that use were seised in fee simple so that the Statute of Uses would have seemed applicable), perhaps and probably limited to situations in which the term of years was to be applied to the performance of the beneficiary’s last will and testament; that limitation would bring the perceived non-applicability of the Statute of Uses into the realm of the active use, in which the feoffees had actual duties to perform and to which historians have maintained the Statute of Uses was not meant to apply.

 

 

 

[IMG 0879] Norfolk. John Howghton lately of Gunthorp in the abovesaid county, yeoman, was attached to answer Christofer Branstell and Ellen his wife, Roger Whytellstall and Grace his wife, and Thomas Mannyng concerning a plea why with force and arms he broke the close and houses of the abovesaid Christofer, Ellen, Roger, Grace, and Thomas at Saxlingham and with certain beasts depastured, trampled, and consumed their grass lately growing there to the value of £10 and overturned their property there with certain plows, whereby the same Christofer, Ellen, Roger, Grace, and Thomas lost the profit of their abovesaid property for a great time, and inflicted other enormities on them to the grave damage of the same Christofer, Ellen, Roger, Grace, and Thomas and against the peace of the now lord king etc. And whereof the same Christofer, Ellen, Roger, Grace, and Thomas by Arthur Hewar their attorney complain that the abovesaid John on April 20 in the 29th year of the reign of the now lord king [April 20, 1538] with force and arms, viz., with horses, oxen, cows, pigs, and sheep, broke the close and houses of the abovesaid Christofer, Ellen, Roger, Grace, and Thomas at Saxlingham and with certain beasts depastured, trampled, and consumed their grass lately growing there to the value of £10 and overturned their property there, viz., 60 acres of land there, with certain plows, whereby the same Christofer, Ellen, Roger, Grace, and Thomas lost the profit of their abovesaid property for a great time, viz., from the abovesaid April 20 in the abovesaid 29th year [April 20, 1538] until the day of the purchase of the original writ of the same Christofer, Ellen, Roger, Grace, and Thomas, scilt., October 25th of the 30th year of the reign of the said now lord king [October 25, 1538], and other enormities etc., to the grave damage etc., and against the peace etc., wherefore they say that they are worse off and have damage to the value of £20, and thereof they produce suit etc.

 

         And the abovesaid John by William Knyghtley his attorney comes and defends force and injury when etc., and as to the coming with force and arms he says that he in nothing is guilty thereof, and of this he puts himself on the countryside. And the abovesaid Christofer, Ellen, Roger, Grace, and Thomas similarly. And as to the rest of the abovesaid trespass supposed above to have been done, the same John says that the abovesaid Christofer, Ellen, Roger, Grace, and Thomas ought not to have their abovesaid action against him, because they say that the abovesaid close and houses as well as the places in which it is supposed that the abovesaid trespass was done are and at the abovesaid time at which it is supposed that the abovesaid trespass was done were one messuage and 100 acres of land with appurtenances in Saxlingham abovesaid called Says, whereof before the abovesaid time at which etc., a certain Roger Say and John Day were seised in their demesne as of fee and thus seised thereof of the same tenements with appurtenances before the abovesaid time at which etc., they enfeoffed the certain Thomas Shaxton, William Alblaster, and John Playtford to have to them and their heirs in perpetuity to the use of the abovesaid Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Thomas, William, and John were seised thereof in their demesne as of fee to the abovesaid use until February 4th in the 27th year of the reign of the now lord king [Feb. 4, 1536], at which certain February 4th the abovesaid Thomas Shaxton by virtue of a certain statute promulgated and provided thereof was seised of the abovesaid tenements with appurtenances in his demesne as of fee and thus seised thereof the same Thomas Shaxton afterwards and before the abovesaid time at which etc., scilt., on April 22nd in the 29th year of the now lord king [April 22, 1537] enfeoffed of the same tenements with the appurtenances a certain Robert Grene to have to himself and his heirs in perpetuity to the use of the abovesaid Thomas Shaxton, his executors and assigns for the term of 22 years then next following and fully completed, and after that term ended to the use of William the son of the same [IMG 0880] Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Robert Grene was seised of the abovesaid tenements with appurtenances in his demesne as of fee to the same uses and afterwards and before the abovesaid time at which etc., scilt., on the same April 22nd in the 29th year abovesaid [April 22, 1537] at Beetley in the abovesaid county the abovesaid Thomas Shaxton established his last will and testament and by the same he established and ordained among other things the same John Houghton to be an executor of his abovesaid testament and afterwards he died there; after whose death the same John was possessed of the same tenements with appurtenances, and the abovesaid Christofer and Ellen, Roger Whitelstall and Grace, and Thomas Mannyng, claiming the abovesaid tenements with appurtenances by color of a certain charter of demise made to them thereof by the abovesaid Roger Say and John Day for the term of their life long before the abovesaid feoffment made in the abovesaid form by the same Roger and John to the aforementioned Thomas Shaxton, William Alblaster, and John Playtford of the abovesaid tenements with appurtenances, whereas nothing of those tenements ever passed into the possession of the abovesaid Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannyng by that charter, [IMG 1860] entered the abovesaid tenements with appurtenances before the abovesaid time at which etc., on the possession of which certain Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannyng thereof the same John Howghton as servant of the abovesaid Thomas Shaxton and by his order until the abovesaid April 22nd in the 29th year abovesaid [April 22, 1537] and after the same April 22nd the same John Houghton [sic, repeated] re-entered onto the abovesaid tenements with appurtenances and trampled, depastured, and consumed the abovesaid grass growing there then with the abovesaid beasts and overturned the abovesaid property in the same tenements with appurtenances for the whole abovesaid time with the abovesaid plows as well he might, and this he is ready to verify, wherefore he seeks judgment if the abovesaid Christofer, Ellen, Roger Whitelstall and Grace and Thomas Mannyng ought to have their abovesaid action against him etc.

 

         And the abovesaid Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannyng say that they ought not to be precluded from having their abovesaid action by anything alleged above, because they say that before the abovesaid time of the abovesaid trespass done a certain Robert Say of Saxlingham was seised of the abovesaid tenements with appurtenances in his demesne as of fee and thus seised thereof of such his estate of the same tenements with appurtenances before the abovesaid time at which etc., died protesting being seised, after whose death and before the abovesaid time at which etc., those tenements with appurtenances descended to the same Ellen and Grace and to a certain Margaret mother of the abovesaid Thomas Mannyng as to cousins and heirs of the same Robert Say, viz., as to the daughters [sic: of John, daughters] and heirs of the same Robert, whereby the same Ellen, Grace, and Margaret entered into the abovesaid tenements with appurtenances before the abovesaid time at which etc., and were thereof seised in their demesne as of fee and thus seised thereof the abovesaid Margaret before the abovesaid time at which etc., died, after whose death the whole part pertaining to the same Margaret concerning the abovesaid tenements with appurtenances descended to the same Thomas Mannyng as to the son and heir of the abovesaid Margaret, whereby the same Thomas entered into that purpart pertaining to him of the abovesaid tenements with appurtenances before the abovesaid time at which etc., and afterwards and before the abovesaid time at which etc., the abovesaid Ellen took as husband the abovesaid Christofer and the abovesaid Grace took as husband the abovesaid Roger Whitelstall, whereby the same Christofer and Ellen, Roger and Grace, and Thomas Mannynge were seised of the abovesaid tenements with appurtenances in their demesne as of fee, viz., the same Thomas in his proper right and the abovesaid Christofer and Ellen, Roger and Grace in the right of the same Ellen and Grace, until the abovesaid John Houghton unjustly and without judgment disseised the same Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannynge of the abovesaid tenements with appurtenances before the abovesaid time at which etc., whereby the abovesaid John Houghton was seised of the abovesaid tenements with appurtenances in his demesne as of fee by disseisin etc., and, thus seised thereof by that disseisin, he enfeoffed before the abovesaid time at which etc., the abovesaid Roger Say and John Day of the same tenements with appurtenances to have to them and their heirs in perpetuity, by virtue of which feoffment the same Roger and John were seised of the same tenements with appurtenances in their demesne as of fee, and thus seised thereof of the same tenements with appurtenances before the abovesaid time at which etc., they enfeoffed the abovesaid Thomas Shaxton, William Alblaster, and John Playtford to have to them and their heirs in perpetuity to the use of Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Thomas, William, and John were seised of the same tenements with appurtenances in their demesne as of fee to the same use until the abovesaid February 4th in the 27th year of the reign of the now lord king abovesaid [February 4, 1536], at which certain February 4th the abovesaid Thomas Shaxton by virtue of the abovesaid statute promulgated and provided thereof was seised of the abovesaid tenements with appurtenances in his demesne as of fee, and thus seised thereof the same Thomas Shaxton afterwards and before the time at which etc., scilt., on the abovesaid April 22nd in the 29th year abovesaid [April 22, 1537] enfeoffed of the same tenements with appurtenances the abovesaid Robert Grene to have to himself and his heirs in perpetuity to the use of the abovesaid Thomas Shaxton, his executors and assigns for the term of 22 years then next following and fully to be completed, and after that term ended to the use of the abovesaid William son of the same Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Robert Grene was seised of the same tenements with appurtenances in his demesne as of fee to the same uses [IMG 1861] and, the same Robert being seised of the same tenements with appurtenances to the same uses in the abovesaid form, the abovesaid Thomas Shaxton afterwards and before the time at which etc., scilt., on the abovesaid April 22nd in the 29th year abovesaid at Beetley abovesaid [April 22, 1537] established his last will and testament and by the same, among other things, he constituted the abovesaid John Houghton to be an executor of his testament abovesaid and there afterwards he died, after whose death the same John Houghton was possessed of the same tenements with appurtenances, on the possession of which certain John Houghton thereof the same Christofer, Ellen, Roger Whitelstall and Grace, and Thomas Mannynge afterwards and before the abovesaid time at which etc., re-entered the abovesaid tenements with appurtenances and were thereof seised in their demesne as of fee, viz., the same Thomas in his own proper right and the abovesaid Christofer and Ellen and Roger Whitelstall and Grace in the right etc., until the abovesaid John Houghton on the April 20th in the 29th year abovesaid [April 20, 1538] with force and arms broke the close and houses of the same Christofer, Ellen, Roger Whitelstall, Grace and Thomas Mannyng at Saxlingham [IMG 0881] and depastured, trampled, and consumed the grass to the value of etc., lately growing there and overturned their property there with the abovesaid plows, whereby the same Christofer, Ellen, Roger, Grace, and Thomas lost the profit of their abovesaid property for the whole abovesaid time, against the peace of the now lord king, as they above complain against him, and this they are ready to verify, wherefore since the abovesaid John Houghton above acknowledged the abovesaid trespass made in the abovesaid tenements with appurtenances, the same Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannyng seek judgment and that their damages by occasion of that trespass be awarded to them etc.

 

         And the abovesaid John Houghton as above says that before the abovesaid time at which etc., the abovesaid Roger Say and John Day were seised of the abovesaid tenements with appurtenances in their demesne as of fee and thus seised thereof before the same time at which etc., they enfeoffed the abovesaid Thomas Shaxton, William Alblaster, and John Playtford of the same tenements to have to them and their heirs in perpetuity to the use of the abovesaid Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Thomas, William, and John were seised thereof in their demesne as of fee to the use abovesaid until the abovesaid February 4th in the 27th year abovesaid [Feb. 4, 1536], at which certain February 4th the abovesaid Thomas Shaxton by virtue of the abovesaid statute promulgated and provided thereof was seised of the abovesaid tenements with appurtenances in his demesne as of fee, and thus seised thereof the same Thomas Shaxton afterwards and before the abovesaid time at which etc., scilt., on the abovesaid April 22nd, enfeoffed the abovesaid Robert Grene of the same tenements to have to him and his heirs in perpetuity to the use of the abovesaid Thomas Shaxton, his executors and assigns for the term of the abovesaid 22 years then next following and fully to be completed and after that term ended to the use of the abovesaid William the son of the abovesaid Thomas Shaxton and his heirs in perpetuity, by virtue of which feoffment the same Robert was seised of the same tenements with appurtenances in his demesne as of fee to the same uses, and, that Robert being seised of the same tenements with appurtenances to the abovesaid uses in the form abovesaid, the abovesaid Thomas Shaxton afterwards and before the time at which etc., scilt., on April 22nd in the 29th year abovesaid [April 22, 1537] at Beetley abovesaid established his last will and testament and by the same, among other things, he constituted and ordained that John Houghton was an executor of his abovesaid testament and afterwards he died there, after whose death the abovesaid John Houghton was possessed of the abovesaid tenements with appurtenances as he alleged above, without this that he disseised the aforementioned Ellen, Roger Whitelstall, Grace, and Thomas Mannyng of the abovesaid tenements with appurtenances as the same Christofer, Ellen, Roger, Grace, and Thomas alleged above, and this he is ready to verify, wherefore he seeks judgment and that the abovesaid Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannynge be precluded from having their abovesaid action against him etc.

 

         And the abovesaid Christofer, Ellen, Roger Whitelstall, Grace, and Thomas Mannynge as before say that the abovesaid John Houghton disseised the same Christofer, Ellen, Roger Whitelstall, Grace, and Thomas of their abovesaid tenements with appurtenances as they alleged above, and they seek that it be inquired by the countryside, and the abovesaid John Houghton similarly. Therefore it is ordered to the sheriff that he should make to come here on the octaves of Holy Trinity 12 etc., by whom etc., and who neither etc., to recognize etc., because both etc.