Catesby. Wherefore should the defendant not avail himself of this matter, when it follows by reason that the defendant enfeoffed the plaintiff to the use of the defendant, and so that the plaintiff is only in the land to the use of the defendant, and the defendant made the feoffment to the plaintiff in trust and confidence? And the plaintiff suffered the defendant to occupy the land, so that by reason that the defendant occupied the land at his will, this proves that the defendant shall have the advantage of this feoffment in trust, in order to justify his occupation of the land by this cause, etc. Moile. This is a good ground of defence in Chancery, for the defendant there shall aver the intent and purpose upon such a feoffment, for in the Chancery a man shall have remedy according to conscience upon the intent of such a feoffment, but here by the course of the common law in the Common Pleas or King's Bench it is otherwise, for the feoffee shall have the land; and the feoffor shall not justify contrary to his own feoffment, that the said feoffment was made in confidence or the contrary. Catesby. The law of Chancery is the common law of the land, and there the defendant shall have advantage of this matter and feoffment; wherefore then shall he not have it in the same manner here? Moile. That cannot be so here in this court, as I have already said, for the common law of the land is different from the law of Chancery on this point. Catesby passed over the point; and as to the trees he repeated the former plea, and said that he had no further answer. As to the herbage, he said that the plaintiff was seised in fee and leased the land to the defendant to hold at his will, etc.; wherefore the defendant entered and committed the alleged trespasses for which the action was brought. Jenney traversed the lease, etc. (5) The following cases show that though lands might be held to the use of a married woman, the Chancellor would not allow her to join with her husband in disposing of her interest during the coverture or marriage, but would treat any disposition made by the feoffee to uses at the joint request of the husband and 1 A judge. wife as a breach of trust, for which the feoffee must answer. The principle upon which this rule was established is clearly stated in the cases below. On similar grounds it has become the established practice to protect the wife against imprudent dispositions of her property under the influence of the husband by inserting in the deed of settlement a provision that she is not during the coverture to make any alienation of her property by way of anticipation. Subject however to this restriction, a married woman has the same absolute power of disposition over property held by trustees for her separate use as if she were unmarried. YEAR BOOK, 7 EDWARD IV, 14. 8. Translation. There was the following case in Chancery. A man was enfeoffed to the use of a woman, who took husband (baron). Husband and wife then sold the land to a stranger, for a certain sum of money, the wife received the money; and husband and wife then prayed the feoffee to the use of the wife to make an estate of this land to the stranger, and he enfeoffed the stranger. Afterwards the husband died, and the wife brings a subpoena against him who had been enfeoffed to her use, and he pleaded all the circumstances, and to this plea the plaintiff demurred!. And the case was rehearsed in the Exchequer Chamber before the Chancellor and the Justices of both Benches. Starkey (for the plaintiff). The plea is not sufficient, for what was done by the wife was void, for if she had been seised of the land, and the husband and the wife had made a feoffment thereof, after the husband's death she would have had a 'cui in vita 2, for that the feoffment made by the wife during the coverture is 1 That is, she admitted the plea to be true in fact, but alleged that the facts therein stated, though true, did not in point of law amount to a valid answer to her claim. 2 This was the remedy by which the wife might recover after the husband's death her lands in the hands of a feoffee to whom the husband had granted them with the assent of the wife, although she had herself been a party to the feoffment, See the form of the writ in the next case. X void, and so here in conscience this sale made by husband and wife was entirely the act of the husband, and not of the wife, etc. Ad quod tota curia concessit, etc. And the Chancellor said that the wife non potest consentire during the coverture, if it be through dread or coercion (that she did it), that cannot be said to be consent, and everything that a married woman does shall be said to be done through dread of her husband, and that they would pay no regard to the fact of her having received the money, because she could have had no advantage of it, but only the husband, etc. The Chancellor said to Starkey, 'What do you pray?' [Starkey.] We pray that the defendant should be committed to prison until he have satisfied us concerning the land, etc. The Chancellor. You can have a subpoena against the vendee who is in possession of the land, and recover the land against him1. Yelverton. If he knew of the deceit and wrong done to the woman, then the subpoena lies against him, otherwise not. The Chancellor. He knew that the woman was a feme covert. Starkey. We pray that the defendant be committed to prison, and as to the subpoena against the other we wish to be advised. YEAR BOOK, 18 EDWARD IV, 11. 4. Translation. There was the following case in the Chancery. A feme sole made a feoffment in confidence (to her own use), and then took husband, and during the coverture (she dying in her husband's lifetime) she declared her will that her feoffees should make an estate to her husband, to him and his heirs for ever, and after her death her husband sued a subpoena. The question was whether this will was good or not. Tremaile. It seems that the will is good, and that the feoffees will be compelled to make an estate according to the will. For just as the wife can make executors with the agreement of her husband, so can she declare her will by the agreement of her 1 It was the interference of the Chancellor with the 'franc tenement' which made the Commons so jealous of his jurisdiction in the earlier stages of its growth. See Spence, Equitable Jurisdiction, i. p. 344. 2 As a general rule, a married woman can make no valid will. Her husband may however assent to her disposing of her personal property by husband that the feoffees should make an estate to the husband, and conscience will see that it should be done. Vavisor. There is a great difference between your case and this case, for there are divers cases in which by agreement with her husband the wife may make executors, as if a bond be made to a woman before her marriage, during the coverture by agreement with her husband she can make executors, and in that case the executors shall have an action of debt on the bond, because the husband cannot in any wise have an action upon it after the death of the wife, for his interest is determined by her death; so as to her apparel, which is called in our law paraphernalia, of this by agreement with her husband she can make a will, and that would be good, and they are the goods of the husband, but in the present case the law is otherwise, for the law will not suffer anything done by her during the coverture to be good, and if during the coverture she makes a feoffment of her land, it is void, and this proves well that nothing done by her during the coverture is good concerning any inheritance, for the writ 'cui in vita' runs, 'cui ipsa in vita sua contradicere non potuit, and so this proves well that her act and her will is void during the coverture, etc. Jaye ad idem. If this will be good, the inheritance of the wife during the coverture will not be safe from alienation by the husband, for the feoffment made before the coverture is to that intent that the alienation of the husband should be ineffectual, and thus if the will should be effectual, that would be prejudicial to the heir (of the woman), quod Suliard concessit. The Chancellor. The will cannot be good, for she cannot acquire or lose land during the coverture without her husband, and seeing that she cannot do that at the common law, and that any act done by her is merely void, the law of conscience says also that her will should be so (void) and ineffectual. Tremaile. A fine levied by husband and wife is good. will. This has the effect of waiving his right to take out administration to her property, and effect will then be given to the dispositions of her will. This however can only extend to those rights of the wife which have not become vested in the husband in his marital right: these (before the Married Women's Property Act, 1870) were confined to 'choses in action not reduced into possession,' e. g. a debt due but not paid, and paraphernalia. As to the power of a married woman under the modern law to dispose by will of interests in lands held in trust for her, see below, Chap. VIII. 1 See p. 305, n. 2. |