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in order to unfetter the more easily the estates of his powerful nobility, and lay *them more open to alienations; being well aware that power will always accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis,) the statute 32 Hen. VIII. c. 36 was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestors, assigned to her in tail for her jointure;(0) or unless it be of lands entailed by act of parliament or letters-patent, and whereof the reversion belongs to the

crown.

From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.

(°) See statute 11 Hen. VII. c. 20.

"The operation of a fine levied by a tenant in tail, when he has the reversion in him self and there are no intermediate remainders, is by letting the reversion into posses sion; but, if he suffers a recovery in the like case, it operates to defeat the reversion As, for example, B. was tenant in tail by descent, with reversion to himself in fee of certain lands, of which A. (his ancestor) had granted leases, with covenants for further renewal. Now, in the first place, although the tenant in tail is empowered under the enabling statute (32 Hen. VIII. c. 28) to grant leases for twenty-one years or three lives, pursuant to the directions of the statute, he has plainly no power, either by the statute or by the common law, to bind the issue in tail to a further renewal; and, consequently, whatever covenants A. might have made to that effect, they would not be binding upon the heir in respect of the estate-tail. Secondly, with respect to the reversion in fee, which also descended at the same time from A. to B., this was hereditas infructuosa as long as the estate-tail subsisted; and although the covenants of the ancestor are said to descend as an onus upon the heir, whether he inherits any estate or not, yet they lie dormant, and are not compulsory until he has assets by descent from or through that same ancestor. But a reversion or a remainder expectant upon an estate-tail is not assets, because it is always in the power of the tenant in tail in possession to bar it at his plea sure. Let us then suppose that, under these circumstances, B. levies a fine, with proclamations, under the statute 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36, (which is said to be the mode usually resorted to in such cases when there are no intervening remainders,) for the sake of quieting the possession, or in order to prepare for making a new settlement. Now, by the operation of the fine, in the first instance, the conusor takes a fee-simple qualified, determinable upon the death and failure of issue of the tenant in tail, and which is afterwards reconveyed by the deed to lead the uses of the fine to B. himself, who consequently becomes tenant of the fee-simple qualified, together with the old reversion to himself in fee-simple absolute. But it is a maxim in law that, when two estates in succession are vested in the same person, the less estate always merges in the greater; and though an estate-tail does not merge, because of the statute de donis, which would otherwise be of no effect, there is no such exception with respect to the qualified or base fee extracted out of the estate-tail, and which therefore instantly merges in the old reversion in fee-simple; and, consequently, the hereditas infructuosa being now reduced into possession, the heir has assets by descent from the same ancestor who entered into the covenants, and is of course bound by those covenants. And so it was adjudged in the case of Kellow vs. Rawdon (Carth. 129) the reversion in fee expectant upon an estate-tail in possession was not assets; but no sooner was the estate-tail become extinct, and the reversion vested in possession in the heir by the operation of the fine, than it thereupon became assets and liable to all the encumbrances of the

ancestor.

We have here, then, the principle upon which the fine operates to let the reversion into possession and to make the heir chargeable in such case, in respect of assets descended, who was not so before. But in the case of a recovery it is otherwise. Why? Because the estate conveyed by the recovery is that of fee-simple absolute, of which the recoveror acquires seisin, not by compromise, as in the case of a fine, but by adjudication of an adverse possession grounded upon an older and better title; and consequently the operation of the recovery is to defeat the reversion, together with all the mesne estates and encumbrances, precisely in the same manner as if the recoveror had actually recovered in a really adverse suit. Ritso's Introd. 204.-SHARSWOOD.

The parties are either the cognizors, or cognizees, and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband,) it is therefore the usual and almost the only safe method whereby she can join in the sale, settlement, or encumbrance, of any estate."

Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood or other right of representa tion. Such as are the heirs general of the cognizor, the issue in tail since the statute of Henry the Eighth, the vendee, the devisee, and all others whe must make title by the persons who levied the fine. For the act of th ancestor shall bind the heir, and the act *of the principal his substitute. *356] or such as claim under any conveyance made by him subsequent to the

fine so levied.(p)

Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea; and persons, who are thus incapacitated to prosecute their rights, have five years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues.(g) And if within that time they neglect to claim, or (by the statute 4 Anne, c. 16) if they do not bring an action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of non-claim.1

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The uses of a fine, in the modern practice, are, first, to extinguish dormant titles which are barred after five years' non-claim by the statutes 18 Edw. I. and 4 Hen. VII. c. 24. Or, secondly, to bar the issue in tail under the statutes 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. Or, thirdly, to pass the estates of femes covertes in the inheritance or freehold of lands and tenements. In the last instance, the fine is supposed by Blackstone to be binding upon the feme coverte, because she is privately examined as to her voluntary consent. But, if that were indeed the principal reason, any other mode of conveyance to which the same form of private examination were superadded would be as binding as a fine. It seems that the fine is binding in such case because it is the conclusion of a real action commenced by original v rit,—without which preliminary, even at this day, a fine would be a nullity. In the arcient practice, the recovery of the estate of the wife in a real action was held to be bir ding notwithstanding the coverture. Upon the same principle, the fine is held to be binding in the present instance, because of the supposed depending of a real action. (of which the fine is an amicable composition by agreement,) and not because of the form of private examination, which is only a circumstance in the mode of levying the fine, and a merely secondary incident introduced to prevent compulsion. And, although fines and recoveries are now no more than feigned proceedings, or, as they are usually called, common assurances, yet, in point of bar and conclusion, they are still governed by the same principles as if they were really adverse suits. Co. Litt. 121, a., n. Ritso's Introd. 204, n.-SHARSWOOD.

"Whenever a fine begins to run against a person, it will continue to run against him; and in case of estates of inheritance, either in fee, or in tail, &c., against his heirs; and in case of chattel interests, &c., against his executors, &c., notwithstanding any subsequent disability. 4 T. Rep. 301. Plowd. 356. And, therefore, if the five years commence against a person who is adult, &c., they will continue to run against that person, though he becomes imprisoned, insane, &c. And, though he dies either free from any disability or under a disability, leaving, for his heir, issue, or personal representative, a person who is either an infant under coverture, insane, or imprisoned, or though he dies intestate and no letters of administration are taken, the five years' non-claim will continue 1 Prest. on Conv. 241, 242. See further, upon the entry to avoid a fine, Adams on Ejectment, 83 to 94. 1 Saund. 319, n., b. 2 Saund. index tit Fine; and 1 Prestor on Conv. 200, et seq.

to run.

But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Elso it were possible that two strangers, by a mere confederacy, might without any risk defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain in statu

time

quo; whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainderman or reversioner,(r) if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire,(s) the estate is forever barred by it. Yet where a stranger, whose presumption cannot be thus punished, officiously interferes in an estate which in no wise belongs to him, *his fine is of no effect, and may at any be set aside (unless by such as are parties or privies thereunto)(t) by [*357 pleading that "partes finis nihil habuerunt." And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea.(u) Wherefore when a lessee for years is disposed to levy a fine, it is usual for him to make a feoffment first, to displace the estate of the reversioner, (v) and create a new freehold by disseisin. And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.16

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If a lessee for life or years levies a fine, the lessor shall have five years after the death of the tenant for life, (Čro. Eliz. 254,) or after the term expires, though he may enter to avoid the fine within the five years after the last proclamation. Whaley vs. Tancred, Vent. 241. See also 3 Co. 78, b. Or if A. have two distinct estates in the same land, as an estate for life, with a remote estate of inheritance, he may enter to avoid the fine when the latter gives him a right to the possession, although the time has elapsed within which he might claim the former. See 1 Prest. Conv. 240. Shep. Touch. 34.— CHITTY.

A fine and five years' non-claim are conclusive evidence of title in the cognizes against all persons not under a legal disability; and a fine alone is sufficient to support an action of ejectment against a person who has entered during the five years without title. Jackson vs. Smith, 13 Johns. 426. Roseboom vs. Van Vechten, 5 Denio, 414.-. SHARSWOOD.

15 So a person coming to a title which is bound by an equitable right cannot, by levying a fine, discharge his estate from the consequences of that right. I Sch. & Lef. 380. In the case of Lord Portsmouth vs. Vincent, (cited in Lord Pomfret vs. Lord Windsor, 2 Ves. 476,) tenants at will in possession under a letting by a receiver in the court of chancery were, by the neglect of the parties in the cause, suffered to remain in possession for a great number of years, and not called on for their rent. They levied fines, and insisted on them as a bar; but lord Hardwicke said, "No: you gained possession as tenants under the receiver of the court: you gained that possession therefore in confidence, and you shall not by means of that possession defeat the title of the persons for whom you had the possession." And he would not suffer the fine and non-claim to be a bar. 1 Sch. & Lef. 380. So where there was tenant for life, remainder to R. P. in fee, and the tenant for life leased for her life, and died in 1799, and lessee continued in pos session without paying rent till his death in 1815, when his son took possession, and continued without paying rent, and in 1817 levied a fine with proclamations, it was held that the heir of R. P., the remainderman, might maintain an ejectment against the son, without an actual entry to avoid the fine, or a notice to determine the tenancy. 3 M. & S. 271.-CHITTY.

16 It is not necessary to be in possession of the freehold in order to levy a fine; but if any one entitled to the inheritance, or to a remainder in tail, levies a fine, it will bar his issue and all heirs who derive their title through him. Hob. 333. A fine by tenant in tail does not affect subsequent remainders, but it creates a base or qualified fee, determinable upon the failure of the issue of the person to whom the estate was granted in tail; upon which event the remainderman may enter. Mashell vs. Clarke, 2 Lord Raym. 778 Doe vs. Whitehead, 3 Burr. 704. Doe vs. Rivers, 7 T. R. 276. Doe vs. Wichelo, 8 T. R. 211. If tenant in tail, with an immediate reversion in fee, levies a fine, the base fee merges in the reversion, and he thus gains a fee simple, which will become liable to al'

IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed, (w) that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law in 12 Edw IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now, therefore, only to consider, first, the nature of a common recovery; and, secondly, its force and effect.

1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit of action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that its form and method will not be easily understood by the student who *358] is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly_explained till treated of at large in the third book of these commentaries. However, I shall endeavour to state its nature and progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted.

Let us, in the first place, suppose David Edwards(x) to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Gold. ing. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a præcipe quod reddat, because those were its initial or most operative words when the law proceedings were in Latin. In this writ the demandant Golding alleges that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it.(y) The subsequent proceedings are made up into a record or recovery-roll,(z) in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding the demandant desires leave of the court to imparl, or confer with the vouchee in private: which is (as usual) allowed him. And soon afterwards the demandant Golding returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree; *and Edwards has judgment to recover of *359] Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter. (a) This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the crier of the court, (who, from being frequently thus vouched, is called

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the encumbrances of the ancestors, from whom the estate-tail descended, as judgments, recognizances, and such leases as are void with respect to the issue in tail. 5 T. R. 108. 1 Cru. 274. A recovery suffered by any tenant in tail lets in all the encumbrances created by himself, which were defeasible by the issue in tail; and after the recovery they will follow the lands in the hands of a bona fide purchasor. Pig. 120. 2 Cru. 287.CHRISTIAN.

A person holding land by deforcement cannot levy a fine so as to affect or bar a tranger to it. Lion vs. Burtris, 20 Johns. 483.-SHARSWOOD.

the common vouchee,) it is plain that Edwards has only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor.

The recovery, here described, is with a single voucher only; but sometimes it is with double, treble, or further voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the præcipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee.(b) For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas if the recovery be had against another pergon, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. (c) If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded."

() See Appendix, page xviii.

(*) Bro. Abr. tit. Taile, 82. Plowd. 8.

17 Mr. Ritso has the following note upon the distinction between single and double voucher:

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In the case of a recovery with single voucher, supposing the præcipe upon which the recovery is grounded to be brought immediately against the tenant in tail himself, who appears and vouches over the common vouchee to warranty, it is then the estate-tail of which he is actually seised at the time which is defeated; and, consequently, remainders and reversions, together with all latent droits and interests, are not barred. Secondly, if the tenant in tail levies a fine-as he usually does-preparatory to the recovery, now, the estate-tail being thus divested by the operation of the fine, the recovery which is had thereon is no longer of the old fee-tail, but of the new fee-simple which has been extracted out of it. In this case, however, as well as in the former, a sufficient recovery cannot be had with single voucher, but only with double voucher at least, though not exactly for the same reason; for in the former case, in which the recoveree or tenant to the præcipe was actually seised at the time of an estate-tail, the recovery was necessarily of that estate and nothing more; but in the latter case, in which the estate-tail was previously divested or discontinued by the fine and turned to a droit, the recoveree or tenant to the præcipe had a fee-simple, the recovery of which is good against him by way of estoppel, (Co. Litt. 352, a.,) but upon his death may be avoided by the issue by defeating the discontinuance under which it was created. As, for example, when the tenant in tail levies a fine, it operates in the first instance as a discontinuance. Suppose, then, the estate created under the discontinuance to be immediately reconveyed to the tenant in tail himself, who thereupon suffers a recovery. Now, it is clear that this recovery is not of the estate-tail, but of the estate created under the discontinuance. By the same rule, then, if the heir in tail defeats the discontinuance, (which he may well do by action, though not by entry,) the discontinuance being defeated, the tortious feesimple which the discontinuance gave rise to is necessarily determined, and consequently the recovery avoided. Co. Litt. 389, a. But when the tenant in tail is brought in as vouchee to the warranty, as in the case of a recovery with double voucher, the heir is then barred by warranty, and so are all they in remainder or reversion. For the law always supposes, upon a principle of equity, that the first vouchee recovers other lands of equal value against the second vouchee, which descend in the same course of inhervance as the estate passed by the recovery would have descended. Upon this presumption of law, which is uniformly admitted in order to give effect to common recoveries, the warranty of the ancestor not only binds the heir and bars every latent right and interest he may have in the lands recovered, but also defeats, at the same time, the remainders over. But where the ancestor has entered into no such warranty (with double voucher) there is evidently no bar to the heir so as to preclude him from his latent droit in tail, which is above the recovery. And so, in all cases where there are several and distinct VOL. I.-43

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