Merton Colledge case.

Merton Colledge Case .

THe Mannor of Malden in Surrey was the ancient seat of Merton Colledge , which was there founded by Walter Merton temp: Edw. 3.10 yeares before the remouing of it to Oxford , being the Mannor of best value left vnto the Colledge by the Founder .

Of this Mannor a Lease for 5000 yeares was drawne from the Colledge by vndue courses Eliz. 21. This Lease was made in shew only to the Queene , it being neuer entred into her receipts ; and within lesse then two months assigned ouer to Henry Lord Fitz Allen , Earle of Arundell without any consideration : by him it was giuen within a month to Iohn Lord Lumley , who married his daughter . From whom Ione Goode , the mother of the present Tenant Iohn Goode Esquire did purchase it for 1800l , within lesse then three yeares after the first grant from the Colledge .

This Lease was questioned by the Colledge in the Kings Bench , about two yeares since . But the Tenant wauing the Common Law , before he had put in his answere to the declaration , called the Plaintiffes into the Chancery : Where vpon opening of the cause before the Lord Keeper , his Lordsh . desiring rather to compound the businesse , then finally to decide it , and the Colledge not accepting the composition offered by the Tenant , his Lordship did order that the Colledge should prosequute this cause in no other Court , but the High Court of Parliament .

The exceptions against this Lease are these .

1 It is vtterly void in Law . 1 By the Stat: of 13 Eliz. which restraineth Colleges from letting Leases for longer then 21 yeares , or three liues . 2 By the Stat: of 18 Eliz: cap. 20. No rent corne being reserued vpon this Lease . 3 By the Stat: of 18 Eliz: cap. 10. Because the Leases in being were not determinable within three yeares .

2 It was neuer contracted for , nor any conditions agreed vpon by the Colledge , but it was drawne at London , and the Counterpart sent ready sealed vnder the broad seale of England with a part ready ingrossed to be sealed by the College , not alterable in a syllable .

3 It was made without impeachment of waste .

4 It comprehends the advouson of the Church , Fines , and profirs of Copyholds , and aboue 500 Acres of Wood , neuer demised before with the demaines . Besides a stocke of graine , & cattell to a great value , the restitution whereof at the end of 5000 yeares is couenanted , excepting such Cattell as should die of the murraine .

5 It was made without one penny consideration more then the Rent .

6 It was vnduly drawne from the Colledge . 1 By threats and violence offered to the person of Dr. Bickley the then Warden . 2 By terror vsed at the Colledge , affrighting the Fellowes with the presence of three Purseuants , sent thither to seize vpon such as should dissent . 3 By admitting Sr Arthur Atey , who had no right of voice to giue a voice as fellow , by which voice only the Granters became the major part .

Allegations of the Adverse part , together with the answers .

That the Lease is made good by the Statute of 18 Eliz: of Confirmations .

Resp: 1 The very point vpon solemne argument was iudged to the contrary . 2 Their wauing of the Common Law is a sufficient argument , that they distrust their cause in point of Law .

That it was the concurrent opinion of the best Lawyers of those times , that such Leases and Estates were good in Law : and in this particular , Baron Altham , and Serieant Crooke delivered their opinions in Parliament 4ᵒ Iacob : that the Lease in question was good .

Resp: 1 Who were the best Lawyers of those times , were an enuious thing to determine , & what their opinions were in this point , cannot be proued . 2 The opinion of Popham , and Anderson , Chiefe Iustices in Parliament 43ᵒ Elizab: was , that the Queene was bound by the Statute of 13ᵒ Eliz: And the like opinion was resolued by the Iudges assisting in Parliament 1ᵒ Iacob : And for that cause , Colleges , and the like were left out of the Bill , which restrained Bishops from granting to the King . 3 What Baron Althams opinion was , it doth not appeare . But 13ᵒ Iacob : Serieant Crooke , with the rest of the Iudges determined that such Leases were not made good by the Statute of 18ᵒ Eliz:

That the Colledge had a consideration sufficient in the improuement of their Rent ; for the Mannor was in Lease for 23 yeare to come at nine pound Rent per Ann: And the Woods in Lease for seauen yeares without Rent , whereas vpon the long Lease 40l per Ann: was reserued .

Resp. 1 That the Lease of 23 yeares was in it selfe void , of which , if the Colledge had taken the same aduantage , which afterwards the Lord Lumly did , the improuement of the old Rent of the Demaines by vertue of the Statute of Prouision , would haue amounted very neere to that summe of 40l per Annum . 2 For the Woods there was 90l ( the Remainder of a former Fine ) due at that time to the Colledge : for which the Queene couenanted to pay 100l , but not one penny was paid . Whence it appeares that those 7 yeares remaining in the Lease of the Woods , were not to passe without some profit to the Colledge

That Mistris Good 24ᵒ Eliz: paid 1800l for the purchase of the premisses , that she was at charge of diverse reparations , new built a Farme house and Barnes . That the present Tenant hath bestowed in new building the Mannor house , in Gardens , Hop-grounds , improuing , fencing , and inclosing the Lands 2700l

Resp. 1 That none of that 1800l paid for the purchase , came to the Colledge , but wholly to the Lord Lumly . All the mony that came to the Colledge , was only some smal summe sent downe to buy voices vnder hand . 2 Mistris Good was not at the charge of new building the Farme house , and Barnes but it was by an vnder-tenant at his owne charge , for his owne benefit . 3 That the charges in improuing , fencing , and inclosing the Lands , was yearely rewarded with the Cropp : and was no more then Tenants vpon racked Rents doe performe for their owne benefit and aduantage . 4 That his charges of building the Mannor house is no improuement to the Land , for a Farme house had beene proportionable enough to the Land , especially as it is vndervalued by them . 5 That Master Good had of his Maiestie in recompence of 22 Acres ( part of this Mannor , taken into the Kings great Parke at Nonsuch ) lands amounting to 10l — 10s — 4d per Annum old Rent , which in true value may be worth 120l per Annum . or more . 6 That since the time of the purchase , there hath beene felled vpon the premisses in Timber ( besides Coppicewoods ) 10000 timber trees , worth ten shillings a tree , which commeth to 5000l. And the present Tenant in his time hath felled 5000 Timber trees , to the value of 2500l. 7 That the Tenant hath a Recognisance of 4000l of the Lord Lumly for his indemnitie . That the premises containe 860 Acres , and are worth per An. 440l , whereof they haue receaued the profit 42 yeares and vpwards .

5 If this Lease should be ouerthrowne , it would open a gappe to the disturbance of many quiet and setled estates , of the like nature with this in question .

Resp. 1 That there is not , nor hath beene any Lease parallell to this in all circumstances , the difference whereof may iustly vary the decision of the cause . For example .

It is no good consequence . 1 Because a Lease of 5000 yeares is voided , therefore a Lease of 100 yeares , or thereabouts , ought to be ouerthrowne . 2 Because a Lease gotten by vndue courses , by threats , and menaces , against the consent of the maior part is voided , therefore a Lease fairely gotten with the free consent of the Leasors ought to be ouerthrowne . 3 Because a Lease gotten without any consideration giuen for it , is voided , therefore a Lease taken vpon valuable consideration ought to be ouerthrowne . 4 Because a weake title to such land , as for a long time of it selfe hath yeelded extraordinary profit to the Tenant , is voided , the refore a weake title to Land in itselfe of little value , and improued only by the excessiue charge of the Tenant , ought to be ouerthrowne .