History of the Parol Evidence Rule II
Prof. Bill Long 12/21/05
The Countess of Rutland's Case II (1604)
Edward, the apparently loving husband of Isabel, thus set up a trust to her advantage in March 1580 with the intent of transferring the land (Eykering) into the trust by summer 1581. Since, as Professor Keren points out, Edward had married far below his station, his setting up the trust for their joint lives would mean that he was taking care of his wife, should she survive him, until her death. Actually Edward died in 1587 and his wife continued to live on Eykering. Therefore, when Roger sued to get the property in 1604, she had been living there in widowhood for 17 years. Isn't there a statute of limitations here? Or, maybe the concept of the statute of limitations to contest indentures hadn't yet arisen in the common law. See how fascinating legal history is?
A Problem Arises
We recall that on March 28, 1580 Edward had "acknowledged" the first indenture before the "Master of Chancery." Now, to continue the story. The next day, March 29, 1580, he set up another trust (indenture). To use Coke's words:
"the said earl of the one part (i.e., Edward), and the Lord Burghley, Sir Gilbert Gerrard and others, of the other part, for the advancement of those who should succeed him in the earldom and for the advancement of the heirs males of the body of Thomas Earl of Rutland his grandfather, covenanted with the Lord Burghley, Sir Gilb. Gerrard and others to convey the said manor of Eyker, amongst others to the said Ld. Burghley, Sir G. Gerrard and others, or to some or one of them, before the Feast of the Annunciation of our Lady next following, which assurance should be to the use of the said Edward and to the heirs males of his body; and for default of such issue, to the use of the heirs males of the body of the said Thomas Earl of Rutland, with divers remainders over."
Oops. We have a potentially really big problem now. Let's follow the language. The day after he acknowledged the first indenture, he set up another one, with one of the same trustees (Gerrard), which granted land to other people. Lord Burghley, by the way, was one of the most influential men in Elizabethan England, being Lord Treasurer as well as a sort of professional warden for estates of the rich. This second indenture would grant to the "heirs males" of the First Earl of Rutland the same manor (here it is called "Eyker") in addition to other unnamed property. Note the two clauses near the bottom. The first talks about the heirs male of Edward. Thus, this indenture would grant the land to a son of Edward and Isabel. I suppose that if a son was born, and Edward died early, that the land would be held in trust for the son and the trustees might make sure that Isabel was provided for. But we don't know. And it is interesting to speculate that the reason for dropping Thomas Holcroft from being trustee of the second trust (he was Isabel's brother) might be in order to indicate that she and her family, under this scheme, would have no interest in the property. Coke does not report that under this second indenture whether Isabel, if she survived Edward, would be provided for during her life (possibly by living on Eykering and being able to derive the profits of the other family lands.)
The clause that eventually got everyone into trouble was the last one--the default clause, because it provided that if Edward had no heirs male then the land would devolve "to the use of the heirs males of the body of the said Thomas Earl of Rutland." Thomas was the first Earl of Rutland. John, younger brother of Edward, was the Fourth Earl. The Fifth Earl was Roger, who brought this suit. Roger was, of course, one of the "heirs males." Edward, it turned out, had no sons. Therefore, this clause might cause some real damage.
Yet, like the first trust, the second would only be activated if the trust property was actually placed in it. But this conveyance had to be completed by the Feast of the Annunciation of the next year (March 25 is the date of the Feast because when you count back 9 months from December 25, the birth of Jesus, to decide when the angel "announced" to Mary that she was pregnant, you arrive at March 25). Thus we have two dates, March 25, 1581 and the end of Trinity term, 1581, by which one of the trusts, if either of the two, must receive the property.
Then sometime after the end of March 1580, when there was still a year to run on each of the indentures, Coke notes the following:
"And afterwards the said Edward Earl of Rutland, by the said later indenture, covenanted and granted with the parties thereto, that if the said Earl Edw. should not convey sufficently the said manor amongst others as is aforesaid, before the said Feast of the Annunciation of our Lady, that then the said Earl Edward and his heirs would stand seised of the manor of Eykering, to the said uses contained in the second indenture."
Thus, sometime after he executed the two indentures, he tried to "clean things up" when he realized that there was no provision for what happened if he took action on neither before the dates specified. So, this addition stated that if he didn't get around to a conveyance or a fine before March 25, 1581 then the second indenture would automatically be in place.* Coke continues:
[*This creates yet another minor problem, which Coke then informs us in the next sentence was not a problem. What if, under this new scenario, Edward had decided to convey the property via the first indenture between the Feast of the Annunciation and the end of Trinity Term in 1581? The first indenture would allow this, but this later addition seemed not to allow it.]
"No fine or other assurance was levied or made by the said Earl Edward before the end of Trinity term."
In other words, Edward sat on his hands. He made no conveyances. According to the agreement, then, the second indenture controlled. And, that indenture had a provision that if Edward and Isabel had no male children (which they didn't have at that time, but the happy couple was still in their early 30s), the land would pass after his death to the other "heirs males" in Thomas' line.
Conclusion--A Confusing Note
Coke goes on to say that two additional acknowledgments of fines were "entered (recorded?) in Octav. Michaelis." On September 17, 1581 the earl "acknowledged a note of a fine of the manor of Eykering only to Sir Gilbert Gerrard and Thomas Holcroft, and to the heirs of Sir Gilbert." On the 18th of the month he "acknowledged another note of a fine of the same manor of Eykering, amongst many other manors mentioned in the last indenture to the Lord Burghley, Sir Gilbert Gerrard and others parties to the last indenture, and to the heirs of the Lord Burgley." What are these? I have no idea....and Coke does not tell us.
But now we are ready for the issue that led to the parol evidence rule. Sorry for going so slowly, but sometimes you have to examine every rock along the path until you know the way you tread.
Copyright © 2004-2007 William R. Long