3. Force and effect of a fine. 12 cognizee, after the right is acknowledged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises.' But, in general, the first species of fine, sur cognizance de droit come ceo, &c., is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seizin in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory. 3. We are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes, 4 Hen. VII., c. 24, and 32 Hen. VIII., c. 36. 354] The ancient common law, with respect to this point, is very claim, stat. c. 16 forcibly declared by the statute 18 Edw. I., in these words: "And the reason why such solemnity is required in the passing of a fine is this, because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world who are of full age, out of prison, of sound memory, and within the four seas the day of the fine levied, unless they put in their claim on the foot of the fine within a year and a day." But this Bar by non- doctrine, of barring the right by non-claim, was abolished for a 34 Ed. III, time by a statute made in 34 Edw. III., c. 16, which admitted persons to claim and falsify a fine at any indefinite distance ; whereby, as Sir Edward Coke observes,m great contention arose, and few men were sure of their possessions, till the ParStat. 4 Hen. liament, held 4 Hen. VII., reformed that mischief, and excellently moderated between the latitude given by the statute and the rigor of the common law. For the statute then made" restored the doctrine of non-claim, but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years after proclamation made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind, who have five years allow VII., c 24. Sur la pie, as it is in the Cotton MS., and not pour le pais, as printed by Berthelet, and in 2 Inst., 511. There were then four methods of claiming, so as to avoid being concluded by a fine: 1. By action. 2. By entering such claim on the record at (12) The estate so rendered made the cognizor a new purchaser as much as a feoffment and re-feoffment at common law. Thus, if, before the fine was levied, the estate had descended to the cognizor from his ancestors ex parte materná, it became afterward descendible the foot of the fine. 3. By entry on See page 118. in the paternal line. (1 Salk., 337; Dy., 237, b; Co. Litt., 316.) This last species of fine had become obsolete in practice long before the abolition of fines and recoveries generally; and the fine tantum was not often resorted to. ed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind." (13) The stat. 4 Hen. VII., c. 24, after directing the proclamations, proceeds, "And the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers to the same, except women covert (other than have been parties to the said fine), and every person then being within the age of twenty-one years, in prison, or out of this realm, or not of whole mind at the time of said fine levied, not parties to such fine; and saving to every person or persons, and to their heirs, other than the parties in the said fine, such right, title, claim, and interest, as they have to or in the said lands, &c., [at] the time of such fine engrossed, so that they pursue their title, claim, or interest by way of action or lawful entry within five years next after the said proclamations had and made; and, also, saving to all other persons such action, right, title, claim, and interest, in or to the said lands, &c., as first shall grow, remain, descend, or come to them after the said fine engrossed and proclamations made, by force of any gift in the tail, or by any other cause or matter had and made before the said fine levied, so that they take their action, or pursue their said right and title, according to the law within five years next after such action, right, &c., to them accrued, descended, remained, fallen, or come; and if the same persons, at the time of such action, &c., accrued, &c., be covert de baron, or within age, in prison, or out of this land, or not of whole mind, then it is ordained that their action, right, and title be reserved and saved to them and their heirs [see 2 H. Bl., 584; 4 T. R., 300; 4 Taunt., 830] unto the time they come and be at their full age of twenty-one years, out of prison, within this land, uncovert, and of whole mind, so that they or their heirs take their said actions or their lawful entry, according to their right and title, within five years next after that they come and be at their full age, &c., and the same actions pursue, or other lawful entry take, according to the law, and, &c. [a similar limitation of the remedy to five years after the cesser of any disability existing at the time of levying the fine]; saving to every person or persons, not party or privy to the said fine, their exception to avoid the same fine by that, that those VOL. II.-D D who were parties to the fine, nor any of them [see Br. Ab., Fine, 12; Burr., 95], nor no person or persons to their use, nor to the use of any of them [this was before the Statute of Uses, see Dy., 215], had nothing in the lands and tenements comprised in the said fine at the time of the said fine levied. And that every fine, which hereafter shall be levied in any of the king's courts, of any manors, lands, &c., after the manner, use, and form that fines have been levied afore the making of this act, be of like force, effect, and authority as fines so levied be or were afore the making of this act, this act, or any other act in this present Parliament made or to be made, notwithstanding; and every person shall be at liberty to levy any fine hereafter at his pleasure, whether he will, after the form contained and ordained in and by this act, or after the manner and form aforetime used.” The following is a summary of some of the principal effects of a fine, according to its nature: it operated as a bar by non-claim, in the manner mentioned in the text, only when levied by a party seized rightfully or wrongfully of an estate of freehold, and duly proclaimed; and this bar extended to strangers as well as to parties and privies. (Stat. 4 Hen. VII., c. 24; 7 Scott, 59.) But a fine did not bar any estate which was not, either previously, or by the operation of the fine itself, divested out of the owner, and turned to a right. (9 Rep., 106, a.) If the party levying the fine had an actual seizin, whether rightfully or wrongfully, and whether for an estate of fee-simple or for a less estate, the fine operated, by disseizin, if necessary, to the extent of its declared intention; but if the party to the fine was not seized at all, either from want of all right, or by having been disseized, the fine had no operation upon the seizin; although, if the cognizor has a vested remainder or reversion, it passed it. (Cro. Car., 156; Co. Litt., 298.) So that, if A. was tenant for life, remainder to B. for life or in tail, remainder to C. in fee, and B. levied a fine to a stranger, or was cognizee to a stranger's fine, this did not disturb the seizin of A., and, consequently, did not divest the remainder of C., who, therefore, could never be barred by the operation of the fine and nou-claim. (2 N. R., 1; 3 Atk., 417 It seems to have been the intention of that politic prince, King Henry VII., to have covertly, by this statute, extended lessee, &c., privies in law, as the lords by escheat, tenant by the courtesy, tenant in dower, the incumbent of a benefice, and others that come under by act of law or in the post, shall be bound and take advantage of estoppels." (Co. Litt., 352, a; Bro. Ab., Estoppel, 216.) 135; 5 Mau. & S., 326.) So, the fine Al., 242.) And this estoppel (which of one of two joint-tenants or tenants in could not be taken advantage of by strancommon did not divest the estate of the gers) bound the heirs in tail, notwithother. (1 Salk., 285; 2 Id., 423; Cr. standing the Statute de Donis, though El., 1640.) In such cases, to give effect the fine was not proclaimed; for that to a fine, a previous disseizin by feoff- statute merely preserved to the issue his ment was resorted to. When levied by formedon, so that he might insist that, tenant in tail, in possession, remainder, by virtue of that statute, he was not reversion, or possibility, and duly pro- barred of his action, and yet could not claimed, it barred the issue in tail, but aver any thing contrary to the fine itself. not those in remainder or reversion; nor (1 Leon., 83; 3 Rep., 89; 1 Cr. & J., was it a bar unless the entail had been 528.) The privies who are bound by a created before the fine levied. (32 Hen. fine are their heirs or their grantees by VIII., c. 36; 10 Rep., 50, a.) When conveyance subsequent to the fine. levied by tenant in tail, seized of a cor- Heirs claiming in fee, being bound by poreal hereditament in possession (by the estoppel, are bound altogether; but himself or by his termor), it was a dis- heirs in tail, though as much estopped continuance of those in remainder or re- as other heirs, had their formedon preversion (that is to say, it destroyed their served by the Statute de Donis, so far as right of entry, and put them to their that statute was not controlled by the formedon or real action). If proclaim- stat. 32 Hen. VIII., c. 36. "Every es ed, it barred the issue in tail; if not pro- toppel ought to be reciprocal, that is, to claimed, it discontinued them also. (Co. bind both parties; and this is the reaLitt., 327, b; 1 H. Bl., 269; 1 B. & Cr., son, that regularly a stranger shall nei241; 4 B. & Ad., 283; 1 Cr. & J., 535; ther take advantage nor be bound by 7 Mee. & W., 102.) So that if A., ten- the estoppel; privies in blood, as the ant in tail in possession, with remainder heir, privies in estate, as the feoffee, to B., levied a fine come ceo, without proclamations, to S. and his heirs, this was a discontinuance of his own issue in tail, and of the remainder-man; if with proclamations, a bar of the issue, and a discontinuance of the remainder-man. If he first bargained and sold the lands to S. in fee, this innocent conveyance passed But though strangers shall not directly the seizin out of himself without effect- aver and take advantage of estoppels, ing a discontinuance; and if upon that yet that which originally was merely an he levied a fine with proclamations, the estoppel may, by circumstances, acquire issue were barred, and the remainder- greater efficacy, so as to be available by man not discontinued. (Touchst., 27.) a stranger. Thus, if a contingent reIf made without proclamations, but with warranty, by one who claimed or expected an estate-tail, but was not seized thereof, it effected what was equivalent to a discontinuance of the issue in tail, but not of the remainder-man, because, had the issue in tail (who were bound by the warranty and assets in fee-simple) been allowed to enter, the estate to which the warranty was annexed would have determined, and thus the benefit of the warranty would have been lost. (Litt., s. 598, 601; 10 Rep., 96, a; 1 Cr. & J., 528.) If levied with or without proclamations by any person, whether entitled to any estate in the land or not, it estopped the parties (including married women) and privies from pleading or insisting that the parties had no estate at the time, or that it did not pass according to the terms of the fine. (27 Ed. I., st. 1, c. 1; 3 Rep., 87; 2 B. & mainder-man or expectant heir levied a fine, he was estopped from averring his want of present interest; but when the contingency happened, the estate fed the estoppel, and passed under the fine, which thenceforth became, to all intents, as operative as if the contingency had happened before it was levied. (Pol lexf., 54; 2 P. Wms., 372; 8 B. & Cr., 497; 10 Id., 181.) The notion that a fine extinguished the rights and contingent interests and powers of the cognizor, seems to be now overruled, at least so far as regards fines in which, or in the deeds leading or declaring the uses of which, a contrary intention is apparent. (Id.; M'Clel. & Y., 58.) Where such an effect was not contrary to the appar ent intention, however, a fine operated as an extinguishment or release of all the cognizor's rights, interests, and powers. It was formerly supposed that if A. was Hen. VIII., fines to have been a bar of estates-tail, 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 al- [355] ways 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 Statute of made, which removes all difficulties, by declaring that a fine s levied by any person of full age, to whom or to whose ances- c. 36. tors 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 ancestor, assigned to her in tail for her jointure; 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. fine. The parties are either the cognizors or cognizees, and these Parties to a 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. par Privies to a fine are such as are any way related to the ties who levy the fine, and claim under them by any right of blood, or other right of representation. 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 who must make title by the persons who levied the fine. For the • See statute 11 Hen. VII., c. 20. disseized by B., and then levied a fine sioned a forfeiture, of which the re- A fine also operated as a confirmation of all prior defeasible estates and charges made by the cognizor, and when levied by a tenant for life, in tail after possibility of issue extinct, or for years, or by a copyholder, and not confined in its nature and operation to such estate as the cognizor might lawfully pass, it occa (14) A fine levied by a lunatic was valid at law, though in equity relief might have been had. (2 Vern., 678; Toth., 101; 4 Rep., 124; 12 Rep., 124; 1 Per. & D., 126.) (15) Mr. Hargrave shows that this is not the true reason, ante, 351, note 7. Privies to a fine. act of the ancestor shall bind the heir, and the act of the prin[356] cipal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied.P Strangers to non-claim. Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, strangers by 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.q1 And if within that time they neglect to Stat. 4 Ann., claim, or (by the statute 4 Ann., 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. c. 16 Fine void unless the a freehold interest in the lands. But, in order to make a fine of any avail at all, it is necesparties have sary that the parties should have some interest or estate in the lands to be affected by it. Else 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 quo; whereas, if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner,' 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 can not thus be punished, officiously interferes in an estate [357] which in nowise belongs to him, his fine is of no effect, and may at any time be set aside (unless by such as are parties or privies thereuntot) by pleading that "partes finis nihil habue (16) In the case of a married woman, which to prosecute her right. (4 Per. the husband was barred after five years & Dav., 285.) from the levying of the fine, and, consequently, the wife being unable to sue without him during the coverture, she was barred for the remainder of the coverture; but on that disability ceasing, she had a new term of five years within (17) And that even where their reversion is expectant upon a mere term of years, unless, indeed, the fine has been levied by one who has ousted the termor, and thus claims adversely to him. (9 Rep., 105, b; 4 Per. & D., 286.) |