Eykering and thomas, first earl of rutland and edward manners and isabel

The previous two essays have shown how there was a potential conflict between the indentures after Edward executed them. This conflict would only happen if he had no son and predeceased his wife. Then, according to the language of the two indentures, it appeared that the second would take precedence, which would award Eykering and other properties to the other "heirs males" of Thomas, the First Earl of Rutland. Roger, therefore, should then win the case.

But another issue arose, and this takes us now to the origin of the PER. Trial was had on the two documents, and Coke tells us that many people testified "as well before the indenture as after the fine levied,...that the said countess should have the manor of E for her jointure." Edward had been dead for many years, but the testimony at trial supported the first indenture, even though the first indenture was superseded by apparently clear language of the second indenture, especially the additions clause. What was the court to do?

The First Point Resolved--Parol Evidence

We should pause one more second before moving to the first of four points decided by Chief Justice John Popham and the other Justices in the case. We should recall that Edward Manners, who had authorized these two indentures, was among the most sophisticated lawyers of his day. He was known as a "learned and profound lawyer," who was appointed Lord Chancellor by Queen Elizabeth. But he got himself into quite a legal pickle with these two indentures. Why would such a person have entered into such a tangle? That is, if he really wanted his wife to get the estate for life, why did he execute the second indenture, especially the additions clause that seemed clearly to give the property to the "heirs males" of Thomas? I think it goes to show that even the most sophisticated legal minds can get themselves into quite some difficult thickets. But are there other issues at work here? I don't know if anyone knows, but it may have been that he drew up both documents just to keep both sides of the family "happy," thinking that he could "manage" things if a lawsuit ever arose and he would testify.

Perhaps he had such confidence in his own ability to sway the judges (after all, he was their peer) that he didn't care about the contradictions. But one thing he didn't seem to count on was the fact that he would be dead when problems arose. And so, we have witnesses at trial testifying to something that happened 25 or more years previously, and we have the two indentures. Popham made four subpoints in discussing the first point. Let's take them one at a time.

"Although the indentures being made for declaring of the uses of a subsequent fine, recovery, or other assurance, to certain persons, and within a certain time, and to certain uses, are but directory, and do not bind the estate or interest of the land: yet if the fine, recovery, or other assurance be pursued according to the indentures, there could not be any bare averment against the indentures taken in such case, that after the making of the indentures, and before the assurance by mutual agreement of the parties, it was concluded and agreed that the assurance should be to other uses: but if other agreement or limitation of uses be made by writing, or by other manner as high or higher, then the last agreement shall stand; for every contract or agreement ought to be dissolved by matter of as high a nature as the first deed, nihil tam conveniens est naturali aequitati, unumquodque dissolvi eo ligamine, quo ligatum est" (77 Eng. Rep. at 90).

His first subpoint, in a nutshell, is that it is "natural" that the testimony of a certain kind only be impugned by an instrument of like kind. That is, he will only allow a writing to challenge a writing, and an "averment" to challenge an "averment." Let's see how he explains it. He begins with a long, very very long, "although" clause. His point is that even though an indenture is "but directory," there could not be any "averment" taken against such indenture. What he means by the indenture being only "directory" goes back to the meaning of that term in the early 17th century. "Directory" as an adjective meant "guiding" and was used as an antonym of something compelled or coerced (OED, s. v.). That an indenture is "but directory" means that it was not yet operative and "compelling." Once the property is placed in the trust (i.e., "Yet if the fine, recovery or other assurance be pursued according to the indentures") the indenture is no longer directory. In the latter case, there could "not be any bare averment against the indentures taken in such case..." So, even though the language is, to me, not precisely clear, it says that an averment (i.e., oral evidentiary testimony) doesn't stand on the same ground as the written word. Therefore, the implication is that the testimony of a bunch of witnesses that Edward wanted to leave the estate to his wife is not going to be honored against a written document.

A second subpoint also comes out of these lines. What if there are two written documents and not simply one document and an averment? He then says that if the "other" agreement or limitation was made in writing, then the "last shall stand." And then comes a legal maxim that appears elswhere in Coke in slightly different words. Let me provide the maxim as found elsewhere, with a translation, and then translate the maxim here.

"Nihil tam naturale est, quam eo genere quidque dissolvere, qui collegatum est." "It is natural that an obligation should not be dissolved but by the same principle which was observed in contracting of it." [The maxim and its translation appears in Bouvier's Law Dictionary, under the word "maxim."]

It appears in the case as follows: "Nihil tam conveniens est naturali aequitati, unumquodque dissolvi eo ligamine, quo ligatum est." "Nothing so conduces to natural equity but that a thing be dissolved by the very same principle by which it is bound."

The maxim sort of does double duty here. First, it gives a reason ("natural equity") why the written text should triumph over the averment, and second, it gives support for the notion that only a subsequent written agreement can undo the previous written contract. Popham, through Coke, has established the basic rule. Let's see how he finishes, in the final essay.

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