Henry Gooderyk v. Christofer Hall of Edgeware, Middlesex : Trinity term, 1540

The defendant in this action of trespass vi et armis was the guardian of a minor heir to a fee tail; the critical point was whether the minor’s parents, themselves the grantees of a beneficial fee tail in a use, had alienated the fee tail through a common recovery to the predecessors in title of the plaintiff. The jury found against the minor. Those who had recovered under the common recovery were themselves feoffees to uses to one Robert Townsend, and the feoffees had thereafter alienated to another group group of feoffees to the use of John Rawson, who was tenant when the Statute of Uses took effect, so that Rawson became tenant of the fee simple at common law. His two daughters inherited; they and their husbands partitioned the inheritance in 1538; the present plaintiff was the husband of one of them. The case is a good exemplar of the workings of the use before the statute, particularly as it related to common recoveries.

Essex. Christofer Hall lately of Edgeware in the county of Middlesex, gentleman was attached to answer Henry Gooderyk concerning a plea why with force and arms he broke the close of the same Henry at Newportpond and inflicted other enormities on him to the grave damage of the same Henry and against the now lord king’s peace etc. And wherefore the same Henry by Godfrey Swayne his attorney complains that the abovesaid Christofer on September 20 in the 31^st year of the reign of the now lord king [September 20, 1539] with force and arms broke the close of the same Henry at Newportpond and other enormities etc., to the grave damage etc., and against the peace etc., wherefore he says that he is worse off and has damages to the value of £40, and thereof he produces suit etc.

         And the abovesaid Christofer in his proper person comes and denies force and injury when etc., and as to coming with force and arms he says he is guilty in nothing thereof, and of this he puts himself on the countryside. And the abovesaid Henry similarly. And as to the rest of the abovesaid trespass above supposed to have been done, the same Christofer says that the abovesaid Henry ought not have his abovesaid action against him, because he says that the abovesaid close as well as the places in which it is supposed the abovesaid trespass was done are and at the time at which it is supposed the abovesaid trespass was done were 2 messuages, 1 toft, an apple orchard, and a dovecote with appurtenances in Newportpond abovesaid, whereof before the abovesaid time at which etc., a certain Joan Bradbury widow was seised in her demesne as of fee and thus seised thereof before the same time at which etc., scilt., on March 12 in the 19^th year of the reign of the now lord king [March 12, 1528] the same Joan in her pure widowhood enfeoffed of the abovesaid tenements with appurtenances the certain Robert Norwyche the lord king’s serjeant at law, John Cheyney, Humfrey Tyrrell, Robert Dormer, James Hadley, Nicholas Lusson, John Lamburn, Guy Crafford, Edward Lamburn, John Lusson, and John Bassett gentlemen to have to themselves and their heirs in perpetuity to the work and use of the certain George Hall and Mary his wife and the heirs of the body of the same George and Mary legitimately procreated from the bodies of the same George and Mary, and for default of such issue to the work and use of the said Mary and the heirs of the body of the same Mary legitimately procreated, and for default of such issue to the work and use of the said Joan and her heirs in perpetuity; by virtue of which feoffment the abovesaid Robert, John, Humfrey, Robert, James, Nicholas, John, Guy, Edward, John, and John were seised of the tenements abovesaid with appurtenances in their demesne as of fee to the same uses; and the same Robert, John, Humfrey, Robert, James, Nicholas, John, Guy, Edward, John, and John being seised of the abovesaid tenements with appurtenances to the abovesaid uses in the abovesaid form, afterwards and before the abovesaid time at which etc., the abovesaid Robert Norwyche, James Hadley, and John Cheyney died and the abovesaid Humfrey, Robert Dormer, Nicholas, John Lamburn, Guy, Edward, John Lusson and John Bassett survived them and held themselves in on the abovesaid tenements with appurtenances and were thereof alone seised in their demesne as of fee to the abovesaid uses by the right of increase etc.; and the same Humfrey, Robert Dormer, Nicholas, John Lamburn, Guy, Edward, John Lusson, and John Bassett being seised of the abovesaid tenements with appurtenances to the abovesaid uses in the abovesaid form, the abovesaid George and Mary before the abovesaid time at which etc., had issue between them, a certain Humfrey Halle; and afterwards and before the abovesaid time at which etc., the abovesaid George and Mary at Brentwood in the abovesaid county died; after whose death the abovesaid Humfrey Tyrrell, Robert Dormer, Nicholas, John Lamburn, Guy, Edward, John Lusson, and John Bassett were seised of the abovesaid tenements with appurtenances in their demesne as of fee to the use of the abovesaid Humfrey Halle and the heirs of his body [IMG 1025] legitimately procreated up to and on February 4 in the 27^th year of the reign of the now lord king, on which day the abovesaid Humfrey Halle according to the form of the statute promulgated thereof was seised of the abovesaid tenements with appurtenances in his demesne as of fee tail; and the abovesaid Henry, claiming the abovesaid tenements with appurtenances by color of a certain charter of demise made to him thereof for term of his life by the abovesaid Joan long before the abovesaid feoffment by the same Joan concerning the same tenements with appurtenances to the aforementioned Robert Norwyche, John Cheyney, Humfrey Tyrrell, Robert Dormer, James Hadley, Nicholas Lusson, John Lamburn, Guy Crafford, Edward Lamburn, John Lusson, and John Bassett made in the abovesaid form when nothing of the same tenements ever transferred into the possession of the same Henry by that charter, entered into the abovesaid tenements with appurtenances before the abovesaid time at which etc.; on the possession of which certain Henry thereof the same Christofer afterwards, scilt., at the same time at which etc., in the abovesaid tenements with appurtenances as next friend of the abovesaid Humfrey Halle being then within the age of 14 years, viz., an age of 9 years and more, to whom the inheritance abovesaid cannot descend re-entered as well he might, and this he is ready to verify, wherefore he seeks judgment if the abovesaid Henry ought to have his abovesaid action against him etc.

         And the abovesaid Henry Gooderyk says that he by anything alleged before ought not to be precluded from having his abovesaid action, because he says that after the abovesaid feoffment by the abovesaid Joan Bradbury to the aforementioned Robert Norwyche, John Cheyney, Humfrey Tyrrell, Robert Dormer, James Hadley, Nicholas Lusson, John Lamburn, Guy Crafford, Edward Lamburn, John Lusson, and John Bassett made of the abovesaid tenements in the abovesaid form; and, the same Robert, John, Humfrey, Robert, James, Nicholas, John, Guy, Edward, John, and John [IMG 2181] then being seised of the abovesaid tenements to the use of the abovesaid George Halle and Mary and the heirs of their bodies legitimately procreated, a certain Robert Townesend, Robert Drury, and Clement Higham before the abovesaid time at which etc., scilt., on April 12 in the 21^st year of the reign of the now lord king [April 12, 1530] prosecuted the lord king’s certain writ of entry sur disseisin in the post out of the court of chancery of the same lord king being then at Westminster in the county of Middlesex against the abovesaid George Halle and Mary his wife concerning the abovesaid tenements among other things with appurtenances directed to the then sheriff of the abovesaid county,

[terms of the writ of entry sur disseisin in the post]

by which certain writ the lord king ordered the same then sheriff that he order the abovesaid George Halle and Mary that justly and without delay they render to the abovesaid Robert Townesend, Robert Drury, and Clement Higham the abovesaid tenements with appurtenances by names of 3 messuages, 1 dovecote, 1 apple orchard, 200 acres of land, 50 acres of meadow, 60 acres of pasture, and 10 acres of woods with appurtenances in Newport and Weddington that the same Robert Townesend, Robert Drury, and Clement Higham then claimed to be their right and inheritance and in which the abovesaid George Halle and Mary did not have entry if not after the disseisin that Roger Hunt unjustly and without judgment made thereof to Robert Townesend, Robert Drury, and Clement Higham after the first crossing of the lord King Henry son of King John into Gascony as they said, and whereof they complained that the abovesaid George Hall and Mary deforced them, and if they did not and the abovesaid Robert Townesend, Robert Drury, and Clement made him the then sheriff secure to prosecute his claim, then let the same sheriff summon by good summoners the abovesaid George and Mary that they be before the then justices of the same lord king here, scilt., at Westminster on the morrow of the Ascension of the Lord then next following to show why they did not, and that the same then sheriff then should have there the summoners and that writ;

[process of the common recovery on that writ]

at which certain morrow of the Ascension of the Lord before Robert Brudenell knight and his companions then the said lord king’s justices of the Bench here, scilt., at Westminster abovesaid, came both the abovesaid Robert Townesend, Robert Drury, and Clement Higham by William Maunsell his attorney and the abovesaid George and Mary by William Whithalgh his attorney; and John Bolles armiger then sheriff of the abovesaid county of Essex then returned the abovesaid writ directed to him in the abovesaid form in everything served and executed, viz., that the abovesaid Robert Townesend, Robert Drury, and Clement Higham found for the same then sheriff pledges to prosecute that writ, viz., John Doo, Richard Roo, and that the abovesaid George Hall and Mary were summoned by Henry Hunt, Richard Dent, whereon the abovesaid Robert Townesend, Robert Drury, and Clement Higham by narrating on that writ in the same court of the abovesaid lord king before the aforementioned then justices by the abovesaid William Maunsell his attorney sought against the abovesaid George Halle and Mary the abovesaid 3 messuages, 1 dovecote, 1 apple orchard, 200 acres of land, 50 acres of meadow, 60 acres of pasture, and 10 acres of woods with appurtenances in Newport and Weddington abovesaid as their right and inheritance and in which the same George and Mary did not have entry except after the disseisin that Roger Hunt made thereof unjustly and without judgment to the aforementioned Robert, Robert, and Clement after the first etc., and whereof they say that they themselves were seised of the abovesaid tenements with appurtenances in their demesne as of fee and right in time of peace in the time of the now lord king by taking thereof esplees to the value etc., and in which etc., and thereof they produced suit etc. And the abovesaid George and Mary by the abovesaid William Whythalgh their attorney came and defended their right when etc., and vouched thereof to warranty Thomas Chapman who then was present in that court in his proper person and freely warranted to them those tenements with appurtenances etc., and thereon the abovesaid Robert, Robert, and Clement sought against the same Thomas tenant by his warranty the abovesaid tenements with appurtenances in the abovesaid form etc., and whereof they said that they themselves were seised of the tenements abovesaid with appurtenances in their demesne as of fee and right in time of peace in the time of the now lord king by taking thereof esplees to the value etc., and in which etc., and thereof they produced suit etc. And the abovesaid Thomas tenant by his warranty defends their right when etc., and says that the abovesaid Roger did not disseise the aforementioned Robert, Robert, and Clement of the abovesaid tenements with appurtenances [IMG 2182] as the same Robert, Robert, and Clement by their writ and narration abovesaid supposed, and of this he puts himself on the countryside. And the abovesaid Robert, Robert, and Clement sought license thereof to emparl and had it. And afterwards the same Robert, Robert, and Clement came back here into court in the same term by their abovesaid attorney, and the abovesaid Thomas although solemnly exacted did not come back but withdrew in contempt of court and defaulted, whereby it was considered by the abovesaid justices that the abovesaid Robert, Robert, and Clement recover their seisin against the aforementioned George and Mary of the abovesaid tenements with appurtenances and that the same George and Mary have from the land of the abovesaid Thomas to the value etc., and that the same Thomas be in mercy etc., as by that record more fully appears;

by virtue of which recovery the abovesaid Robert Townesend, Robert Drury, and Clement afterwards and before the abovesaid February 4 in the 27^th year abovesaid [February 4, 1536] entered into the abovesaid tenements with appurtenances and thereof were seised in their demesne as of fee; and the same [IMG 1026] Henry Gooderyk further says that the abovesaid 2 messuages, 1 toft, apple orchard, and dovecote with appurtenances are and at the time at which etc., were parcel of the abovesaid 3 messuages, 1 dovecote, 1 apple orchard, 200 acres of land, 50 acres of meadow, 60 acres of pasture and 10 acres of woods with appurtenances recovered in the form abovesaid and that the abovesaid recovery was had to the use of the abovesaid Robert Townesend, his heirs and assigns, as well as that the abovesaid Robert Norwyche, John Cheyney, Humfrey Tyrrell, Robert Dormer, James Hadley, Nicholas Lusson, John Lamburn, Guy, Edward, John Lusson, and John Bassett on the day of the purchase of the original writ of entry sur disseisin in the post and at the time of the abovesaid judgment against the abovesaid George and Mary rendered were seised of all the abovesaid tenements with appurtenances to the use of the abovesaid George and Mary and the heirs of their bodies legitimately procreated; and further the same Henry says that, the abovesaid Robert Townesend, Robert Drury, and Clement being seised of all the abovesaid tenements with appurtenances in the abovesaid form, enfeoffed the certain John Rawson citizen and mercer of London, John Crayford, sr., William Robyns, and William Kyrton to have to themselves and their heirs in perpetuity to the use of the abovesaid John Rawson, his heirs and assigns; by virtue of which feoffment the same John Rawson, John Crayford, William Robyns, and William Kyrton were seised of all the abovesaid tenements with appurtenances in their demesne as of fee to the use of the abovesaid John Rawson, his heirs and assigns until and at the abovesaid February 4 in the 27^th year abovesaid, on which day the same John by virtue and pretext of the statute promulgated and provided in this manner case was alone seised of all the abovesaid tenements with appurtenances in his demesne as of fee, and of such estate he died thereof protesting being seised; after whose death and before the abovesaid time at which etc., the abovesaid tenements with appurtenances descended to the certain Margaret then and still the wife of the same Henry and to Katherine the wife of Oliver Rychardson as to sisters and heirs of the abovesaid John Rawson; whereby the same Henry and Margaret and Oliver and Katherine entered into the abovesaid tenements specified in the abovesaid recovery with appurtenances before the abovesaid time at which etc., and were thereof seised in their demesne as of fee in right of the abovesaid Margaret and Katherine; and the same Henry, Margaret, Oliver, and Katherine being thus seised of all the abovesaid tenements with appurtenances in the abovesaid form before the time at which etc., scilt., on September 25 in the 30^th year of the reign of the now lord king [September 25, 1538] partition between them concerning all the abovesaid tenements with appurtenances at London in the Parish of St. Peter in the Ward of Cheep was made and had; by which certain partition thus made thereof between them the abovesaid 2 messuages, toft, apple orchard, and dovecote with appurtenances in the bar of the abovesaid Christofer above specified were allocated and assigned to the aforementioned Henry and Margaret in allocation of the whole purpart of the same Margaret touching her from the tenements abovesaid with appurtenances, and the residue of the abovesaid tenements with appurtenances were allocated and assigned to the aforementioned Oliver and Katherine in allocation of the whole purpart of the same Katherine touching her from all the abovesaid tenements with appurtenances; by pretext of which certain partition the same Henry and Margaret in the abovesaid tenements specified in the bar of the abovesaid Christofer with appurtenances before the same time at which etc., entered and were thereof seised in their demesne as of fee in the right of the same Margaret until the abovesaid Christofer Hall on the abovesaid September 20 in the 31^st year abovesaid [September 20, 1539] with force and arms broke the close of the same Henry at Newportpond abovesaid against the peace of the now lord king as the same Henry above complains against him, without this [IMG 1027] that the abovesaid Humfrey Tyrrell, Robert Dormer, Nicholas Lusson, John Lamburn, Guy, Edward, John Lusson, and John Bassett on the abovesaid February 4 in the abovesaid 27^th year were seised of the abovesaid tenements with appurtenances to the use of the abovesaid Humfrey Halle and the heirs of his body legitimately procreated as the abovesaid Christofer above alleged, and this he is ready to verify, wherefore since the abovesaid Christofer above acknowledges the abovesaid trespass made in the abovesaid tenements with appurtenances, the same Henry seeks judgment and his damages by occasion of that trespass to be adjudicated to him etc.

         And the abovesaid Christofer as before says that the abovesaid Humfrey Tyrrell, Robert Dormer, Nicholas Lusson, John Lamburn, Guy, Edward, John Lusson, and John Bassett on the abovesaid February 4 in the abovesaid 27^th year [February 4, 1536] were seised of the abovesaid tenements with appurtenances in their demesne as of fee to the use of the abovesaid Humfrey Halle and the heirs of his body legitimately procreated as the same Christofer Halle above alleged, and of this he puts himself on the countryside. And the abovesaid Henry similarly. Therefore it is ordered to the sheriff that he should make to come here on 15 days from the day of St John the Baptist 12 etc., by whom etc., and who neither etc., to recognize etc., because both etc. At which day here came the parties etc., and the sheriff did not send the writ. Therefore as before it is ordered to the sheriff that he should make to come here on the morrow of St. Martin 12 etc., to recognize in the abovesaid form etc. At which day here came both the abovesaid Henry Goodryk by his attorney abovesaid and the abovesaid Christofer in his proper person and the jurors empaneled exacted similarly came, who chosen, tried, and sworn to tell the truth concerning the premisses say on their oath that the abovesaid Humfrey Tyrrell, Robert Dormer, Nicholas Lusson, John Lamborn, Guy Crafford, Edward Lamburn, John Lusson, and John Bassett on February 4 in the abovesaid 27^th year [February 4, 1536] were not seised of the abovesaid 2 messuages, toft, apple orchard, and dovecote with appurtenances in his demesne as of fee to the use of the abovesaid Humfrey Halle and the heirs of his body legitimately procreated just as the abovesaid Henry above alleged; and they assess the damages of the same Henry by occasion of the abovesaid trespass beyond his outlays and costs by him put out on his suit in this part at 6s8d, and for those outlays and costs at 20s. Therefore it is considered that the abovesaid Henry recover against the aforementioned Christofer his abovesaid damages at 26s8d assessed by the abovesaid jurors in the abovesaid form as well as 40s adjudicated by the court here of increment to the same Henry at his request for his outlays and costs abovesaid, which certain damages attain in all to 5 marks, and let the abovesaid Christofer be taken etc. Afterwards, scilt., on February 12 then next following here came the abovesaid Henry by his abovesaid attorney and acknowledged that he was satisfied of the damages abovesaid; therefore let the abovesaid Christofer be quit of those damages etc.