Thomas Sherman v. John Felgate of Yaxley, gentleman: Easter term, 1540
This case demonstrates three interesting aspects of conveyancing right before the Statute of Uses:
(1) a bargain and sale (and thus a use) made right before the Statute of Uses, along with the range of covenants possible even in a relatively small conveyance of land
(2) a use created by a bargain and sale complicated by the inclusion of unfree lands that had to be surrendered to the lord of the manor to the use of the purchaser
(3) a covenant that one parcel of land [“lands A”] held to use could be used to secure the quiet enjoyment of other lands conveyed [“lands B”] by granting the purchaser of lands B a right to enter and enjoy the profits of lands A for as long as he could not have quiet enjoyment of lands B to take effect whenever in the future his quiet enjoyment of lands B was interrupted.
The security described in (3) is particularly interesting. It would not seem to be a typical “right entry” because it was not a reversionary interest retained by the grantor. It would seem to be by nature springing and executory, since at a future time and at the occurrence of a future event it would cut short the fee simple interest of the beneficiary of the use. And it would seem to be defeasible, since it would terminate at such time as the purchaser’s quiet enjoyment of lands B was restored. The enforcement of the Statute of Uses would have to take such practices into account, but this feature of Sherman v. Felgate was not here an issue.
Part of the dynamic of this case was probably the Statute of Uses itself. After the conveyance was set up, Parliament passed the statute. The terms of the statute would certainly have created substantial doubt about the terms of the conveyance, at least about Sherman’s security interest in lands A as described in (3) above. It is also possible that, since Felgate’s wife had to participate in providing Sherman a secure title even though she had not apparently been involved in the bargain and sale, Felgate’s wife may have been unwilling to go along with the conveyance.
[IMG 0992] Suffolk. John Felgate of Yaxley in the abovesaid county, gentleman, was summoned to answer Thomas Sherman concerning a plea that he render to him £40 that he owes him and unjustly detains etc. And whereof the same Thomas in his proper person says that, whereas the abovesaid John on April 10 in the 26th year of the reign of the now lord king [April 10, 1535] at Yaxley by his certain obligatory writing granted that he was bound to the same Thomas in the abovesaid £40 to be paid to the same Thomas at the feast of All Saints then next following [Nov. 1, 1535], nevertheless the abovesaid John, although often asked, still has not rendered the abovesaid £40 to the same Thomas but to this time has refused to render them to him and still refuses, wherefore he says that he is worse off and has damages to the value of 100s., and thereof he produces suit etc. And he proffers here in court the abovesaid writing that attests the abovesaid debt in the abovesaid form, whose date is on the abovesaid day and year etc.
[FELGATE’S PLEA]
And the abovesaid John by James Downes his attorney comes and defends force and injury when etc. And he seeks oyer of the abovesaid writing, and it is read to him etc. He seeks also oyer of the indorsement of the same writing, and it is read to him in these words [the condition was written in English, not Latin]:
[The defeasance]
The condicyon of this obligacyon is suche that yf the withynbounde John Felgate his heyres & feoffeis and every of them in alle poynttes welle & truly observe performe fullfyll & kepe alle & singuler the covenauntes bargyns salis grauntes & agrementes whiche one the partye of the seid John Felgate his heires & feoffyes owght to be observyd performyd fulfyllid & kepe in maner and forme and accordynge as yt ys mensyned conteyned & expressed in an indenture made betwene the seyd John Felgate on the one partye & the withinnamed Thomas Sherman on the other partye, whyche indenture berythe the date the daye and yere of thys present obligacion, that then this present obligacion to be voyde or els to stonde & abyde in full strenght & vertue.
After these were read and heard, the same John Felgate says that the abovesaid Thomas ought not have his abovesaid action against him, because he says that after the making of the abovesaid writing, scilt., on the abovesaid day and year, at Yaxley in the county of Suffolk the abovesaid indentures specified in the abovesaid indorsement were made between the same John Felgate by the name of John Felgate of Yaxley in the county of Suffolk gentleman on the one part and the abovesaid Thomas Sherman by the name of Thomas Sherman of the same town on the other part, the other part of which sealed by the seal of the same Thomas the same John here in court proffers, the date of which is the same day and year, attesting that
[Terms of the Indenture]
[bargain and sale of the lands with location specified]
the abovesaid John Felgate completely bargained and sold and by the same indenture completely bargained and sold to the aforementioned Thomas Sherman and his heirs two closes and a small piece of land lying together in the abovesaid Yaxley both free and unfree and one meadow called Baldewyns Medowe lying in Thornham Parva in the said county, which certain abovesaid small piece of land and meadow lately were in the possession and occupation of a certain William Fanner lately of the abovesaid Yaxley, whereof one close called the Breche lies between the lands of Anthony Yaxlee, armiger, in the tenure and occupation of Richard Catton on the south and the lands lately of Thomas Wrenne now in the tenure and occupation of the abovesaid Thomas Sherman on the north, and the abovesaid small piece of land lies between the lands of Anthony Yaxlee on either side, whereof one head abuts on the abovesaid close called the Breche toward the east and the other head abuts on the road called the Grenewey leading from Thrandeston toward Thornham Parva toward the west, and the other close lies at the eastern end of the abovesaid close called the Breche and the width of the same close is adjacent to a certain field called the Northfeld lying in the abovesaid Yaxley, which certain two closes with small piece of land contain by estimation 15 acres more or less, and the abovesaid meadow the abovesaid John Felgate lately acquired from a certain John Baldewyn containing by estimation 2 acres more or less, adjacent to a certain meadow of the Bishop of Norwich lately acquired from a certain Jon Trypp lying at Thornham Wateryng, and also all evidences, deeds, copies of court rolls, and all other writings concerning the same to have and hold the abovesaid two closes, the small piece of land, and the meadow called Baldewyns Medowe with their appurtenances to the aforementioned Thomas Sherman, his heirs and assigns in perpetuity,
[Felgate’s covenant to make a secure estate to Sherman as advised by April 16, 1536]
[IMG 0993] and the abovesaid John Felgate covenanted and granted by the same indenture that he before the feast of Easter next following [April 16, 1536] the date of the same indenture would make or cause to be made to the aforementioned Thomas Sherman, his heirs and assigns or such other persons as the abovesaid Thomas Sherman names and appoints to this and to his heirs to the use of the abovesaid Thomas Sherman and his heirs a secure, sufficient, and legitimate estate of and in the abovesaid two closes, the small piece of land, and the meadow with appurtenances exonerated from all prior bargains, sales, mortgages, jointures, dowers, statutes, rents, burdens, leases, and all other encumbrances whatsoever except one lease of three years of the abovesaid meadow made before to a certain John Wroo, and also all rents and services to all chief lords of the fee or fees thenceforward to be owed by fine, feoffment, recovery, release with warranty, or otherwise as they should be advised by the abovesaid Thomas Sherman or by his learned counsel, his heirs or assigns at the costs and burdens of the abovesaid John Felgate, his executors or assigns,
[Felgate’s promise to surrender unfree lands to Sherman by April 16, 1536]
and also the abovesaid John Felgate promised and granted that before the abovesaid feast of Easter he would make or cause to be made a secure, sufficient, and legitimate surrender or surrenders to the aforementioned Thomas Sherman, his heirs and assigns concerning all the unfree lands of the parcels set out above exonerated from all and singular fines and other encumbrances,
[Felgate’s covenant to deliver all muniments to Sherman by December 25, 1535]
and further the abovesaid John Felgate covenanted and granted to the aforementioned Thomas Sherman that he before the feast of Christmas next following the date of the same indenture would deliver or cause to be delivered to the aforementioned Thomas Sherman, his heirs, executors, or assigns all manner evidences, charters, deeds, writings, copies of court rolls, and muniments concerning the premises or any parcel thereof being in the custody of the abovesaid John Felgate or of any other person or persons to his use by his delivery, consent, or notice,
[Felgate’s covenant to make other assurances of Sherman’s title as directed]
and further the abovesaid John covenanted and granted by the same indenture to and with the aforementioned Thomas Sherman that he the same John Felgate and his heirs and all other persons being seised of the premises or any parcel thereof to the use of the abovesaid John Felgate or to the use of any other person or persons at the date of the same indenture at any time or times then in the future when he or they should reasonably be requested for this by the abovesaid Thomas, his heirs or executors would make, cause, or permit to be made all and all manner such thing or things, act or acts whatsoever they be that would be reasonably advised [IMG 1955] by the abovesaid Thomas Sherman, his heirs or executors or his or their learned counsel whether it be by fine, feoffment, recovery, release, warranty, or otherwise for further assurance of the abovesaid Thomas Sherman, his heirs, and feoffors [feoffatorum] in the premises at the costs and burdens in law of the abovesaid Thomas Sherman, his heirs and executors or assigns,
[Felgate’s covenant that his feoffees in regard to other lands would stand seised to Sherman’s use if the title to lands here conveyed was defective or the tenure disturbed]
and further it was covenanted and agreed between the abovesaid parties that, whereas the abovesaid John Felgate, Gregory Felgate, and John Felgate, sr., and others stood and were seised at the making and sealing of the same indenture of and in 40 acres of land lying in the abovesaid Yaxley and Thornham Parva, viz., in Rycroft, Oteclos, and Thornham Close whether it be more or less, and also of and in one meadow called Long Meadow lying in the abovesaid Yaxley by the meadow of the abovesaid Thomas Sherman lately acquired from Richard Catton to the use of the abovesaid John Felgate, jr., and his heirs, thenceforth they would stand and be seised of the same 40 acres of land and meadow called Long Meadow to such uses, covenants, and intentions as would be expressed in the future, viz., it was covenanted and agreed between the abovesaid parties that if the abovesaid two closes, the little piece of land, and the meadow called Baldewyns Medowe or any parcel of them at any time in the future should happen to be recovered against the aforementioned Thomas Sherman, his heirs or assigns or be taken by just title from the abovesaid Thomas Sherman, his heirs or assigns or by those who should be proprietors of the same in future time or that the said Thomas Sherman, his heirs or assigns or those who should happen to be proprietors of the said two closes, the little piece of land and the meadow called Baldewyns in such future time should be vexed, perturbed, or expelled by entry or otherwise by any person or persons thence in the future such that they not be able peacefully to enjoy the abovesaid two closes, the little piece of land, and the meadow called Baldewyns by the said bargain and sale, that then the abovesaid John Felgate, Gregory Felgate, and John Felgate, sr., and all other persons who then or thence in the future should happen to be seised and enfeoffed of and in the abovesaid 40 acres of land and the meadow called Long Medowe immediately on such vexation and disturbance should be seised to the use of the abovesaid Thomas Sherman and his heirs or assigns and that it should be well allowed to the aforementioned Thomas, his heirs and assigns peaceably to enter in the same 40 acres of land and the meadow called Long Medowe and thereof to receive the advantages and profits until the said two closes of land, the little piece of land, and the meadow called Baldewyns should be made secure to the aforementioned Thomas Sherman, his heirs and assigns by the abovesaid John Felgate, his heirs and assigns according to the said bargain and sale made thereof to the aforementioned Thomas Sherman by the abovesaid John Felgate, his heirs or assigns as above has been recited and expressed,
[Sherman’s payment for the lands and terms of payment]
for which certain two closes, little piece of land, and the meadow called Baldewyns with their appurtenances and other premises in mode and form above recited the abovesaid Thomas Sherman covenanted and granted by the same indenture to pay or cause to be paid to the aforementioned John Felgate, his executors or assigns £34 of lawful English money in the manner and form following, viz., at the sealing and delivery of the same indenture, £24 of lawful money that the abovesaid John Felgate acknowledged that he received and has acquitted and exonerated the abovesaid Thomas, his executors and assigns thereof by the same indenture, and at the feast of Easter then next following after the date of the same indenture the remaining £10 of lawful money in full payment of the said sum of £34,
[miscellaneous covenants]
and further the abovesaid John Felgate covenanted and granted by the same indenture that all rents issuing from the abovesaid two closes [and] the little piece of land called the Breche were not beyond 16d. annually to be paid to any person, and further the said John covenanted by the same indenture then that there were not beyond two acres of unfree land in the abovesaid two closes and the little piece of land as in the same indenture is more fully contained,
[Felgate’s plea of complete performance of the indentures]
and the same John Felgate says that neither the abovesaid Thomas Sherman nor any other learned counselor of that Thomas after the making of the abovesaid writing and before the abovesaid feast [IMG 1956] of Easter specified above in the abovesaid indenture made any advisement to make or [cause] to be made any estate of and in the abovesaid two closes, the little piece of land, and the meadow nor of any parcel thereof to the aforementioned Thomas Sherman, his heirs or assigns nor to any persons to the use of that Thomas Sherman and his heirs by the abovesaid John Felgate according to the form and effect of the abovesaid indenture, and further the same John Felgate says that he after the making of the abovesaid writing and before the abovesaid feast of Easter, scilt., on the vigil of the same feast, surrendered into the lord’s hands by the hands of John Norman, unfree tenant, in the presence of George Herbert and other unfree tenants the two acres of unfree lands parcel of the manor of Yaxley in the county of Suffolk lying within the abovesaid two closes and being parcel of the same to the use of the Thomas Sherman and his heirs according to the custom of the abovesaid manor, viz., at Yaxley in the abovesaid county of Suffolk, which certain two acres of unfree land were all the unfree land parcel of the premises and that the same two acres of unfree land at the abovesaid time of the abovesaid surrender made thereof in the abovesaid form by the abovesaid John Felgate were not burdened with any fines or with any other encumbrances according to the form and effect of the abovesaid indenture, and also the same John Felgate says that he after the making of the abovesaid writing and before the abovesaid feast of the birth of the Lord specified above in the abovesaid indenture, scilt., on the vigil of the same feast, delivered to the same Thomas Sherman three pieces of evidences and a copy of the court rolls concerning the premises with appurtenances, which certain three pieces of evidences and one copy of court rolls thus delivered were all and all manner evidences, charters, deeds, writings, copies of court rolls and all the muniments concerning the premises or any parcel thereof in the custody of that John Felgate or of any other person or persons being to his use by delivery, consent, or notice of that John, viz., at the abovesaid Yaxley according to the form and effect of the abovesaid indenture [IMG 0994] And further the same John Felgate says that neither the abovesaid Thomas Sherman nor any learned counselor of that Thomas after the making of the abovesaid writing up until now made any advisement of any thing or of any things nor of any act or of any acts of or for the greater security of the abovesaid Thomas Sherman, his heirs or feoffors in the premises to be made to or to happen by the abovesaid John Felgate or his heirs or by any other person being seised of the premises or any parcel thereof to the use of the abovesaid John Felgate or to the use of any other person or persons according to the form and effect of the abovesaid indenture, and the same John Felgate further says that the abovesaid Thomas Sherman up until this time has peaceably enjoyed the abovesaid two closes, the little piece of land and the meadow called Baldewyns according to the bargain and sale abovesaid without vexation, disturbance, or expulsion by the entry or otherwise of any person or persons, and the same John Felgate further says that the abovesaid two closes and little piece of land were not nor are burdened with any rent or rents annually issuing from the same beyond 16d. according to the form and effect of the abovesaid indenture, and this he is ready to verify, wherefore he seeks judgment if the abovesaid Thomas Sherman ought to have his abovesaid action against him etc.
[SHERMAN’S REPLICATION]
And the abovesaid Thomas says that he ought not to be precluded from his action abovesaid by anything alleged above, because, protesting that the abovesaid John did not fulfill anything specified in the abovesaid indenture to be fulfilled on his part according to the form and effect of the that indenture as the abovesaid John above alleged, for a plea nevertheless the same Thomas says that he after the making of the abovesaid indenture, viz., on April 13 in the 27th year of the reign of the now lord king [April 13, 1536] at the abovesaid Yaxley advised and made a certain advisement for his further security to be had of and in the premises to be made by the aforementioned John Felgate and Isabella his wife, the tenor of which certain advisement follows in these words [in English]:
[Sherman’s bill of advisement]
This bille made the xiij day of Apryll in the xxvij yere of the reynge of our soverayn lorde kynge Henry the viij [April 13, 1536] witnessith the dyvyse made by Thomas Sherman & publyshyd to John Felgate gentleman concernyng the makynge sure to the same Thomas Sherman & to his heires of too closys & one pightell lying together in Yaxlee in the countye of Suffolke & one medowe liyng in litelle Thornham in the seid countye whyche the same Thomas late purchessyd of the seid John Felgate as by indenture therof made beryng date the x day of Apryll in the xxvj yere of the reigne of kynge Henry the viij [April 10, 1535] more pleynly doth appere fyrst he & Isabelle his wyffe & every of them that the seide John & Isabelle at the assysse at Bury next after the date hereof to be holdyn shall make a goode & suffycyent knowlege of the premysses by wryght of covenaunt unto the seid Thomas, Robert Kene, Thomas Beeke, George Waller, & Thomas Sherman the yonger & to heieres of the seid Thomas Sherman thelder in lyke maner & forme as hereafter insuyth [hereafter in Latin]:
[writ of covenant directed by the advisement]
It was ordered to John Felgate gentleman and Isabella his wife that they hold to Thomas Sherman, sr., Robert Kene, Thomas Beeke, George Waller, and Thomas Sherman, jr., the covenant made between them concerning 5 acres of land, 10 acres of pasture, and 2 acres of meadow with appurtenances in Yaxley and Thornham Parva, and if not etc.
[concord directed by the advisement]
And the concord is such, scilt., that the abovesaid John and Isabella recognize the abovesaid tenements with appurtenances to be the right of that Thomas Sherman, sr., as those that the same Thomas Sherman, sr., Robert, Thomas Beeke, George, and Thomas Sherman, jr., have from the gift of the abovesaid John Felgate and Isabella, and they remit and quitclaim them from the same John and Isabella and the heirs of the same Isabella to the abovesaid Thomas Sherman, sr., Robert, Thomas Beke, George, and Thomas Sherman, jr., and the heirs of that Thomas Sherman, sr., in perpetuity, and particularly the same John and Isabella grant for themselves and the heirs of that Isabella that they warrant to the abovesaid Thomas Sherman, sr., Robert Kene, Thomas Beeke, George, and Thomas Sherman, jr., and the heirs of that Thomas Sherman, sr., the abovesaid tenements with appurtenances against all men in perpetuity etc.
And the same Thomas further says that at the abovesaid Yaxley he on the abovesaid April 13 in the abovesaid 27th year [April 13, 1536] required the aforementioned John Felgate that he and the abovesaid Isabella his wife appear before the justices at the abovesaid assizes and fulfill the abovesaid advisement according to the tenor of the same and according to the form and effect of the abovesaid indenture in all things, which certain John did not fulfill the advisement abovesaid according to the form and effect of the same, and this he is ready to verify, wherefore he seeks that the judgment and his abovesaid debt together with damages be awarded to him etc.
[FELGATE’S REJOINDER AND JOINDER OF ISSUE]
[IMG 0995] And the abovesaid John Felgate as before says that the abovesaid Thomas Sherman did not make any such advisement concerning and on the premises as the same Thomas alleged above, and of this he puts himself on the countryside. And the abovesaid Thomas similarly. Therefore it is ordered to the sheriff that he 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. At which day here come the parties etc., and the sheriff did not send the writ. Therefore as before it is ordered to the sheriff that he make to come here on the octaves of St. John the Baptist 12 etc., to recognize in the abovesaid form etc.