2 Inst. 516. Cont. Pl. levy a fine, his successor shall be barred. Com. 375. Acc. 1 Leo. 84. Vide post, (K 4.) So, if the conusor grants a term for years to A. in trust for himself, it shall be a bar of the trust. 1 Ch. R. 50. So a fine sur grant et render for years, by a tenant in tail, shall be a bar to the issue in tail. Sav. 106. (y) So, if A. enters into land, devised to the corporation of London for a charity, and levies a fine, and five years pass; the corporation shall be barred, though it had no notice of the devise. R. Jon. 452. But a man shall not be barred as privy, who does not claim the estate as heir to the conusor, though he was his heir in blood: (~) and therefore, if the uncle disseises the father, and both die after a fine levied by the uncle; the son shall not be barred, though he was heir to the uncle: for he claims as heir to the father, and not as heir to the uncle. So he shall not be barred as privy, who is only privy in estate: as, a fine, by one joint-tenant, of the whole, does not bar his companion as privy. 2 Inst. 516. So a fine by a donee, or lessee, does not bar the donor, or lessor. 2 Inst. 516. So a fine by tenant for life does not bar his heir, who has the remainder in tail. Sav. 128. (I 2.) Strangers: for what interest. So a fine bars not only parties and privies, and their heirs, but all other people in the world, of full age, &c. who do not make claim, &c. Stat. 18 Ed. 1. De modo levandi fines. St. 27 Ed. 1. De finibus levatis. Pl. Com. 357. (a) And therefore, not only estates of inheritance, and freehold, are barred by a fine, but also leases for years. 2 Inst. 517. R. 5 Co. 124. The estate of tenant by statute-merchant, or statute-staple. 2 Inst. 517. R. 5 Co. 124. Sho. 40. Skin. 262. And of tenant by elegit. 1 Mod. 217. If (b) the statute be extended, or an inquisition found, before entry. 1 Mod. 217. So, all interests which are vested, and in esse: (c) as, a copyhold, or customary interest. R. 9 Co. 105. Vide Copyhold, (N) The interest of an executor, who has land for payment of debts. 5 Co. 124. If cestui que trust of a term purchases the inheritance, and levies a (y) 1. If a tenant in tail accepts a fine from a stranger, it has no operation whatever; and after his death his issue may enter, and aver a continuance of the estate tail in his father. 2 Inst. 517. 3 Rep. 89. b. 1 Mod. 117.-2. But if a tenant in tail makes a grant and render in such fine, it will then, when executed, bar his issue. Jenk. 275. 2 Inst. 517.- 5. The grant and render however, must be of something that is entailed. Plowd. 435. Jenk. 275.- 4. As a tenant in tail may convey his whole estate by fine, so he may create any lessor estate out of it, which will likewise bind his issue after his death. Plowd. 430. (z) The privity must be both in blood and estate. 13 Vin. 213. Hob. 333. Touch. 21. (a) Infra, (K.) (b) 1. But not otherwise. - 2. So where a person has a judgment for debt, and the debtor before execution aliens by fine, and five years pass, yet the creditor out execution. 1 Ch. Ca. 268. 1 Freem. 211. (c) Hence remainders and reversions. Y 4 may still sue fine, fine, the essees shall be barred. R. Cro. Car. 110. R. 1 Sid. 458. 1 Vent. 56. 81. 2 Vent. 329. 1 Lev. 270. Carth. 102. (d) So, the interest of a lessee for years before entry. R. 5 Co. 124. 2 Cro. 60. So, if a lease be to commence in futuro, and a fine passes, and then the lease commences before the five years pass after the fine; it shall be barred, if it be not claimed. Per 3 J. 2 Cro. 60. (e) So, the estate of a devisee, if a fine be levied by the heir, before entry. R. Cro. Car. 201. So a title to dower is barred by a fine of the husband, though it is not consummate till the death of the husband after the fine. Semb. Dy. 224. Dub. Pl. Com. 373. a. Acc. 2 Co. 93. a. 10 Co. 49. b. 99. a. R. Mo. 53. So, a title to be tenant by the curtesy, by a fine with his wife. Adm. 5 Mod. 67. So, a title of entry for condition broken. R. Cro. Car. 577. So, a title of a lessee who never was in possession, but named as a trustee for the wife of the conusor of the fine. R. 1 Ch. R. 64. (d) 1. A fine is a good bar to a trust estate, as well as to a legal one: because the cestui que trust has an equitable interest, and is therefore bound to pursue the proper remedies for securing it; and if this were not the case, the operation of a fine would be much less extensive than it is, as there are so many trust estates now always existing. Thus if A. is seised of lands in trust for B., and a stranger enters on those lands, and levies a fine of them with proclamations; if five years pass without any claim being made, this fine will be a good bar, both to A. who had the legal estate, and to B., who was the cestui que trust. 5 Cruise, 208. 1 Ch. Ca. 268. 278. 1 Freem. 311. 2. But with respect to equitable titles there is a distinction; for where the equity charges the lands only, a fine and nonclaim is a good bar; but where it charges the person only, in respect of the land, it is then no bar. 3. Thus if a trustee levies a fine of the lands whereof he is seised in trust, to a person who has notice of the trust; or if a man purchases from a trustee, with notice, and levies a fine; the cestui que trust will not be barred; because the fine being levied to a person, or by a person who has notice of the trust, the land will continue subject to the trust; and therefore the court of chancery will not permit the fine to be a bar; so that whenever a person is charged as claiming under a trustee, he must either set up an opposite title, and deny his claiming under the trustee; or else, if he does claim under the trustee, he must set forth that he paid a valuable consideration for the lands, and deny that he had any notice of the trust. Gilb. Cha. 62. 5 Cruise, 208. 5. If however the title is merely a legal one, and a man has purchased an estate which he himself sees has a defect on the face of the deeds, yet the fine will be a bar, and will not affect the purchaser with notice, so as to make him a trustee for the person who had the right; because this would be carrying it much too far, for the defect upon the face of the deeds is often the occasion of the fines being levied. 5 Cruise, 209. 2 Atk. 631.- 4. Where a fine is levied by a trustee, or a person who has notice of the trust, it is not void at law, but the person to whom the fine was levied, without consideration, or with notice, becomes himself a trustee for the real owner. 5 Cruise, 209.-5. As to how far a fine levied by a cestui que trust himself is a bar to his trust estate: before the statute of uses, if a cestui que trust had levied a fine, it might have been avoided at any time by the plea quod partes finis nihil habuerunt; because the cestui que use had no estate in the land, but was barely tenant at will to his trustees. 5 Cruise, 209. 27 H. 8. 20. Bro. Abr. tit. Fine pl. 4.-6. But modern chancellors have very much altered the law in this respect, as it has been long since settled, that a cestui que trust in tail may, by a fine duly levied, bar his issue, as fully as if he had the legal estate; for otherwise trustees, by refusing, or by not being capable of executing their trust, might prevent the tenant in tail from executing the power given him by the law over his estate, which would be extremely inconvenient, and tend to the introduction of perpetuities. 5 Cruise, 209. 2 Ch. Rep. 78.-7. Where a married woman is entitled to a trust estate, for her sole and separate use, she may bar it by joining with her husband in a fine. Forrest. 41. (e) Vide Hard. 410. So, So, if a conveyance be obtained from A. by indirect means; a fine and nonclaim afterwards shall be a bar to relief in equity. R. Jon. 416. So a title to a writ of error shall be barred by a fine, and nonclaim years. 2 Inst. 518. R. Mo. 366. for five And a title to a writ of disceit, by the lord in antient demesne. 2 Inst. 518. But this is understood of a' subsequent fine; and not of the same fine intended to be avoided by the writ of error, or disceit. R. Skin. 13. Ray. 462. 2 Jon. 181. Pl. Com. 370. b. 1 And. 172. So a trust shall be barred by a fine: as, if a devise be of land charged with portions, &c. and the devisee levies a fine to A. &c. the portions incurred after the fine are barred. R. 2 Ca. Ch. 247. R. ì Ca. Ch. 268. 278. If it be without notice. 2 Ca. Ch. 125. Eq. 1 Abr. 257. So, an equity of redemption. Per Hale, Hard. 512. Cont. Eq. Abr. 257. So, a bill of review. 2 Ver. 190. (13.) For what, not. 2 Ver. 190. But an interest not vested shall not be barred by a fine: as, if a lease be made to commence in futuro, a fine and five years' nonclaim, before the term commences, is not a bar. R. 5 Co. 124. 2 Cro. 61. Noy, 23. Per Hale, Hard. 413. So, if a statute be acknowledged, a fine by the conusor of his land, and five years' nonclaim, does not bar, if the statute was not extended. 1 Mod. 217. Or, judgment be suffered. Ca. Ch. 268. Or, a decree in chancery be against him, who levied the fine. Ca. Ch. 268. So nothing shall be barred by a fine and nonclaim, which is not devested, and put to a right. R. 9 Co. 106. a. 3 Mod. 196. Ray. 149. (f) And therefore, if a lessee for years levies a fine, and five years pass; the lessor shall not be barred: for his estate was not devested, but partes finis nihil habuerunt. Hard. 401. If a lease for life be to A. remainder to B. for years, remainder to B. in fee; if B. levies a fine, the estate for life of A. shall not be barred : for it was antecedent, and not devested. Hard. 402. So, if a man has a rent, or common, issuing out of land, a fine and non-claim of the land does not bar the rent, common, &c. for it was not devested. Vide Pl. Com. 435. (g) So a fine by a vendee of tenant in tail of the gift of the king, the reversion being in the king, and non-claim for five years, does not bar the issue in tail. Semb. 1 Sid. 166. Vide Estates, (B 31.) So, if there be a devise for years for payment of debts and legacies, remainder to B. in tail, who enters and pays several, and afterwards levies a fine; this does not bar the term. Dub. 3 Mod. 195. Sho. 73. So, if a fine be (f) 5 Rep. 123. b. (g) 5 Rep. 124. a. e. Board and Jones. levied by lessee for life, or years, and he continues Hard. 400. Cro. Jac. 60. T. Raym. 149. Touch. 23. And see Goodright the the payment of the rent, &c. it does not bar: for it would be fraudulent. R. 3 Co. 77. Fermor. If a mortgagor levies a fine, and he continues in possession, and five years pass; the mortgagee shall not be barred: for the fine was fraudulent as to him. Per Ch. J. 1 Vent. 82. Per Hale, Hard. 402. If cestui que trust of a term purchases the inheritance, and levies a fine, and the intent appears, that the term shall be preserved to protect the purchaser; the term is not barred. 1 Vent. 82. 1 Sid. 460. Per Vent. 2 Vent. 329. Hard. 401. If A. conveys to B., and covenants to make further assurance, and afterwards B. leases for years to A. who makes assurance by fine; if the intent appears, that the term shall be preserved, it is not destroyed by the fine. Hard. 402. If a trustee, or mortgagee, levies a fine, the trust, or equity of redemption, shall not be barred. Per Hale, Hard. 512. So a trust, or equity, created by a fine and the uses declared upon it, shall never be barred by the same fine and nonclaim. R. Ca. Ch. 278. So a fine and nonclaim shall not be a bar of an equity, which does not directly charge the land in the fine, but only the person in respect of the land. R. Ca. Ch. 278. (K) Who are not barred. (K 1.) If they claim within five years. By the st. 18 Ed. 1. de modo levandi fines, all (h) were barred by a fine, if they did not put in their claim within a year and a day; and this was the common law. 2 Inst. 518. (i) But by the st. (k) 34 Ed. 3 16. nonclaim upon a fine was not a bar (). (h) 1. By the common law, no laches can be imputed to the king; and therefore no delay or omission upon his part, in making a claim, will bar his right. Hence he cannot be barred by a fine to which he is not a party. 5 Cruise, 264.—2. Nor is the royal prerogative in this instance taken away by the st. 9 G. 3. c. 16. Ibid.-3. Ecclesiastical corporations, and in general all ecclesiastical persons, who are seised in right of their churches only, and have not an absolute estate in their possessions, being restrained from alienation by several statutes, are not only prohibited from levying fines, but cannot even bar their successors by their non-claim. Ibid. 11 Rep. 78. b. 1 Rol. Rep. 151. Watson, 427. 3 Keb. 775. (i) And it was determined, that in the case of a tenant for life, remainder for life, remainder in fee, if the first tenant for life had aliened his estate, and the alienee had levied a fine, the remainder-man for life might enter, and avoid the fine, both as to himself, and as to the remainder-man in fee; but if the person next in remainder neglected to enter within the year and day, not only he, but also the remainder-man in fee, were for ever barred; and a claim by the remainder-man, within the year and day, would not have saved his right; by which means, the estates of remainder-men and reversioners were frequently barred, by the neglect of the particular tenants. Plowd. 357.359. 1 Inst. 254. 262. 2 Inst. 51. (k) 1 Rich. 3. c. 7., the clauses of which are copied almost verbatim in 1 Rich. 5. (1) This statute was made, in consequence of the following petition from the commons, which is published in the rolls of parliament, 17 Edw. 3. No. 26. "Item que noncleyme des fines levees sur le rendre en temps a venir ne barre nul home de sa action.' To which the king answered, Il plest au rọi q' desore cest chose soit fait, et q'estatut eut soit fait p'avis des granty at autres de son conseil. 5 Cruise, 177. Yet Yet by the st. 4 H. 7. 24. (m). a fine (n), &c. shall conclude all (0), as well privies as strangers, &c. saving to every person and persons and their heirs, other than the parties, such right, claim, and interest as they have to, or in the said lands, &c. at the time of the fine engrossed; so as (p) they pursue the same by action or entry within five years after the proclamations made. (g) And therefore, every stranger to a fine, who has a present right to the land at the time of the fine levied, shall not be barred, if he pursues his claim, by action or entry, within five years after the proclamations made upon the fine. But a man, who has a present right, ought to claim within five years, otherwise he shall be barred; as, if a lessee for years be ousted, and his lessor disseised, and the disseisor levies a fine; the lessor ought to claim within five years: for he had a present right. R. 9 Co. 105. b. Podger. Vide post, (K. 2.) So, if a copyholder for life, or years, be ousted, and the lord disseised, and the disseisor levies a fine; the lord ought to avoid it within five years, for he has a present right. 9 Co. 105. b. If tenant in tail be disseised, and the disseisor levies a fine, and five years pass, the issue in tail shall not have five years after the death of tenant in tail; for his father had a present right to the entail. Pl. Com. 374. a. (K 2.) Or within five years after a new right accrued. So, by the st. 4 H. 7. 24., a fine shall conclude, &c. saving to all persons such action, right, &c. as first shall grow, remain, or come to them after the said fine levied and proclamations made, by force of any entail, or other matter had before the said fine (r); so as they pursue their action, right, &c. within five years next after such action, right, &c. accrued. And (m) By the st. 34 Edw. 3. c. 16., the efficacy of fines was entirely destroyed, and strangers were thereby allowed to claim lands at any indefinite period of time, after a fine had been levied of them, which must have been productive of very great inconveniences, and occasioned this act. 5 Cruise, 177. (n) With proclamations; for the statute of nonclaim is still in force with respect to fines that are levied without proclamations. But though fines without proclamations are no bar to the issue in tail, yet when levied by a tenant in tail in possession, they operate as a discontinuance, and of course put the remainder-man or reversioners to their formedon; which now, by the st. 21 Jac. 1. c. 16., must be brought within twenty years after the right accrues, unless the person who has the right labours under any of the disabilities specified in that statute. 5 Cruise, 178. (0) 1. The object of the st. 4 H. 7., was not confined to the enabling tenants in tail to bar their issue; it was also intended to secure those who were in possession of land against all dormant claims; the words of the statute being so extensive, that they comprehend almost all persons, and almost every kind of estate or interest in lands. 5 Cruise, 199.-2. And where a fine and nonclaim is pleaded, a court of law will not enter into any discussion of the title, till that is accounted for. 2 Blk. 1259. (p) Although there be no transmutation of possession, and the cognizor be in of the old use, yet after five years the fine will operate as a bar to all claims whatever. 2 Wils. 19. (9) 1. Explained by 32 H. 8. c. 36. 2. And the doctrine established by them is, that a fine with proclamations shall bar all privies and strangers; and when levied of any manors, fands, tenements, or hereditaments entailed to the person levying such fine, or to any of his ancestors, shall bar the said persons and their heirs, whether lineal or collateral, claiming by force of such entail. 5 Cruise, 183. (r) 1.Plowden was of opinion, that the purvieu of the st. 4 H. 7. is only against those who have right at the time of the fine levied; or have future right upon cause arising before; |