Jenk. 275. 32. Although a tenant in tail be disseised of the 3 Rep. 90 a. estate tail, yet if, during the disseisin, he levies a fine to a stranger, it will bar his issue; who will not be allowed to plead that his ancestor was not seised of the estate tail when he levied the fine. 33. If the issue in tail levies a fine in the lifetime Touch, 26. of his ancestor, who is then seised of the estate tail, the ancestor himself may afterwards levy a fine, and thereby bar his issue, and also the person to whom the issue levied the fine. So that in all cases of this kind, it is understood, that the tenant in tail dies without barring the estate tail, by which means it descends upon the issue. sometimes 34. In the case of a lineal descent, the issue in tail A Possibility may be barred by the fine of his ancestor, although of an Estate at the time of levying the fine, the ancestor had only barrable. a possibility of an estate tail, which never took effect: because the issue, in making his title, must convey his descent through such ancestor, which makes him a privy to him. 35. Lands were given to A. and his wife in spe- Archer's cial tail. A. died, leaving issue, a son, who disseised Case, 3 Rep. 90 a. his mother, and levied a fine with proclamations. Hob. 333. It was resolved by all the Judges, that this fine was a good bar to the issue of the son; although the son, at the time when he levied the fine, had only a possibility of an estate tail, his mother being then alive. For the statute 32 Hen. VIII. ought to be expounded according to the letter of it; and as the land was entailed to the ancestor of the person who levied the fine, although such ancestor was alive, so that no estate or right had descended on the person. who levied the fine, which he could pass or extinguish, yet as the statute says, "entailed to the person so levying the same, or to any of his ancestors," in Grant'sCase, the disjunctive, it was adjudged, that the fine did bar the right which afterwards descended to him, not only as to himself, but also as to all his issue. 36. This principle was carried much farther in the following case. W. Grant devised his lands to John Grant, when 10 Rep. 50 a. he should attain the age of twenty-five years, to hold to him and the heirs of his body. John Grant, the devisee, after he had attained the age of twenty-one years, but before he was twenty-five, levied a fine of the lands thus devised; and the question was, whether it should bar his issue. Cro. Eliz. 122. 2 Leon. 36. It was resolved that the estate tail was barred by this fine, although John Grant, when he levied it, had but a bare possibility of an estate tail. Lord Coke says, no judgment was given; but Croke and Leo-" nard, who have reported this case by the name of Johnson v. Bellamy, say, judgment was given that the estate tail was barred by the fine. And in Sir Thomas Raymond's Reports, 149, it is said, that although the estate was not barred by the statute 4 Hen. VII. it was well barred by the statute 32 Hen. VIII.` in consequence of the words, "all fines levied by any person or persons, &c. of any manors, &c. before the time of the said fine levied in any wise entailed to the person or persons so levying the same fine, or to any of the ancestors of the same person or persons. 37. This doctrine, however, only extends to cases where the descent is lineal; for in the case of a collateral descent, a fine levied by a person who was never seised of the estate tail, and on whom it never descended, but who had only a possibility of an estate tail, is no bar to a collateral heir in tail of the person who levied the fine; because, in making his title to the estate tail, he need not convey himself through him, so that he is not a privy to him. 31. S. C. Wade. 38. A husband made a feoffment to the use of Macwilliam's Case, himself and his wife, and the heirs male of their two Hob. 332. bodies; remainder to the heirs male of the body of W. Jones, the husband, remainder to the heirs of their two by the name bodies, remainder in fee to the husband. The hus- of Godfrey v. band and wife had issue, a son and a daughter. The husband died: the son made a lease, to commence after the death of his mother; then levied a fine with proclamations, to the use of himself in fee, and died without issue, in the lifetime of his mother. The question was, whether this lease was good against the daughter. It should be observed, that the estate tail limited to the husband and wife, and the heirs male of their bodies, vested wholly in the wife, after the death of her husband, though she was within the statute 11 Hen. VII. c. 20.; and the remainder to the heirs infra, male of the body of the father was in the son at the time when he levied the fine. But these estates became extinct when the mother and son died, so that the lease in question could only be derived out of the remainder to the heirs of the bodies of the husband and wife, to which both the son and the daughter were inheritable. It was determined by Lord Ch. J. Hobart, Hutton, and Jones, against the opinion of Winch, that although, in a lineal descent, the issue in tail were barred by the fine of their ancestor, notwithstanding such ancestor had but a possibility of an estate tail when he levied the fine, yet, in a collateral descent, the case was very different, as it was not necessary that the issue in tail should make mention of every collateral issue inheritable before him, as in a lineal Bradstock v. one; and that in the present case, as the estate tail never descended on the son, his fine could be no bar to his sister, who was not privy to him, because she could make her title to the estate tail without conveying her descent through him, or even mentioning him in her pedigree. Judgment was given that the lease was void as to the sister. But it was observed, that if the estate tail had descended on the son, his fine would then have barred his sister; because, in that case, she must have conveyed her descent through him, in order to make out her title to the estate tail, by which means she would have been privy to him. 39. So where an eldest son levied a fine of an Cro.Car. 434. estate tail, which was then vested in his mother, and died in her lifetime, so that the estate tail never descended on him, AnEstate Tail in a Rentcharge is barrable. Heliot v. Saunders, It was adjudged in the Court of Common Pleas, by three Judges against one, that this fine did not bar the second brother; and upon a writ of error, all the Judges of the King's Bench were of the same opinion because, as the estate tail never vested in the elder brother, the younger brother was not privy to him. 40. It has been stated, that a fine may be levied of a rent-charge; consequently, an estate tail in a rent-charge may be barred by a fine levied of it; and a tenant in tail of a rent-charge may also bar it by levying a fine of the lands out of which the rent issues. 41. Upon demurrer, the case was thus:-A person Cro. Ja. 700, who was tenant in tail of a rent-charge, issuing out 1 Ves. 391. of the manor of Kingsbury, granted by Sir Ambrose Cave, levied a fine of the manor to Sir A. Cave and his heirs; and the fine was pleaded in bar of an avowry for this rent, by the heir in tail. The fine was levied of the rent, per nomen manerii; and an averment was made, that the fine was levied by agreement of the parties, with an intent to bar the rent. The defendant pleaded non-comprised, which being demurred to, and argued several times, it was held by Lord Ch. J. Hobart and Harvey, that the rent was barred by the fine, because, being levied of the land, it passed the rent inclusively, being directed by the agreement of the parties. Advowson. 42. As a fine may be levied of an advowson in And in an gross, so a tenant in tail of an advowson in gross Plowd. 435. may bar his issue by a fine levied according to the statute 4 Hen. VII. It is, however, said in Plowden, that if a tenant in tail of an advowson grants and renders to another, by fine, the nomination of a clerk ante, § 20. to the advowson, this will not bind the issue, upon a principle already stated: for that the right of nomination is a thing distinct from the advowson, and not entailed. Modern writers have, however, thought Watson, 84. differently on this subject, on the principle, that the Dodd. 63. presentation and nomination are, in effect, the same thing, being the fruit and full profit of the patronage. But if a tenant in tail of an advowson grants by fine the nomination of a clerk to one and his heirs, so that when the church becomes void, the grantee and his heirs may nominate a clerk to the tenant in tail and his heirs, and that he or they shall present the clerk so nominated to the ordinary; such a fine will not bind the issue in tail, because there the nomination and presentment are distinguished, so that the fine is not levied of the thing entailed. Estate. 43. Where a person is tenant in tail of an equitable And in aTrust or trust estate, and levies a fine of it, such fine will 0 VOL. V. |