TITLE XXXV. FINE. CHAP. X. Effect of Fines in barring particular Persons, Estates, TH SECTION 1. HE object of the statute 4 Hen. VII. 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. And where a fine Driver v. Lawrence, and non-claim is pleaded, a court of law will not 2 Black. R. enter into any discussion of the title, till that is 1259. accounted for. 2. All those who are parties to a fine are imme- Parties. diately barred, even though they labour under disabilities, except infants; and they are also barred, ante, c. 5. unless the fine is reversed during their minority. § 36. Lay Corporations. Croft v. Howell, 3. Lay corporations, who have an absolute estate in their possessions, and a power of alienation, may be barred by a fine and non-claim. 4. The Cooks of London, who were incorporated Plowd. 536. by King Edw. IV. bargained and sold a part of their lands in fee; the bargainee entered and levied a fine with proclamations, and five years passed. The bargain and sale proved to be void, on account of a misnomer in the corporation, and it became a question whether the corporation was bound by the fine and non-claim. c. 13. Married Women. It was determined that the corporation was barred by the fine, because the stat. 4 Hen. VII. was made for the public good, and to settle and quiet men's inheritances; that therefore the words of it ought to be construed in the most extensive sense, for the benefit of those who were in possession of lands, and for barring the rights of all persons who were remiss in making their claims: so that although the words only extended to natural persons, and their heirs; and no mention was made of any corporation or successors, yet it was the intention of the legislature that it should extend to such corporations, as had in themselves an absolute estate and power of alienation. Ecclesiastical corporations however are not barred by a fine and non-claim, as will be shown hereafter. 5. By the common law, a married woman could not, by joining with her husband in any deed or conveyance whatever, bar herself, or those claiming under her, of any estate whereof she was seised in her own right; or of that portion of her husband's real property, which the law has provided for her support, in case she survives him. This rule pro bably arose from that principle of law, that the legal existence of a woman is suspended during her marriage, or at least is incorporated or consolidated into that of her husband; or else from a fear that her husband should use any compulsion, in order to force his wife to part with her property or rights, in his favour. 6. But although a married woman was never bound by any deed or conveyance executed by her during the coverture; yet if an action was brought against a husband and wife for the recovery of any lands, whether the property of the husband or of the wife, and judgement was given against them, the wife was barred. 7. Thus it appears that till the statute of Westminster 2, even a judgement by default in a possessory action, against a husband and wife for the wife's freehold, was so far binding on her, that after her husband's death she could only recover her estate by bringing a writ of right. Now a fine being an accommodation of a suit, and a concord being deemed to have the same force and effect as a judgement in a real action; it follows that a married woman must have been as effectually barred by a fine as by a judgement in an adversary suit. Nor was it thought necessary to give the wife a power of claiming lands whereof she and her husband had levied a fine, because in that case she must have assented to it; whereas the husband might have put in a feint plea, or let judgement go against him by default, without the consent or even knowledge of his wife. 8. Mr. Hargrave, to whose learned note on Fines I 1 Inst. 121 a. am indebted for the preceding observations, has note 1. very properly suggested, that the common notion of a fine's owing its effect in barring married women to their secret examination by the Judges or commissioners, is incorrect. This remark is fully confirmed by a passage in Glanville, from which it appears that a married woman might appoint her husband as her attorney to acknowledge a fine for her *, in which case it is highly improbable that she should have been examined. It may therefore be concluded that the private examination of a married woman was not a necessary circumstance at common law, and was probably first prescribed by the statute De modo levandi fines. 9. If a fine derived its efficacy in barring married women from the circumstance of their private examination, then that form might easily have 2 Inst. 673. been added to any other conveyance: whereas, by the common law, a bargain and sale by a husband and wife, on which the wife is privately examined, does not bind her, after the coverture is determined. Hob. 225. As to their 10. But whatever were the principles upon which own Estates. this doctrine was originally founded, it is now fully settled that a married woman, by joining with her husband in levying a fine, may bar herself and her heirs of all here state and interest in any lands whereof he is seised in her right. And where a fine is levied by a husband and wife, of lands which are the property of the wife, the whole estate passes from the wife, and the cognizee is in by her only; • Potest autem pater ita loco suo filium pro se ponere, et vice versa, extraneus quoque extraneum, uxor quoque maritum: cum quis itaque maritus, positus loco uxoris suæ, in placito de maritagio, vel de dote ipsius uxoris, per judicium, sive per concordiam, &s.. Glanville, lib. 2. c. 3. vide also ante, c. 5. § 5. so that if the fine is afterwards reversed, the whole estate becomes again vested in the wife. 11. Where a fine is levied by a husband and wife, of lands which are the estate of the wife, the warranty should be from the husband and wife, and the heirs of the wife. 2 Rep. 57 b. 77 b. * Doug. 44. Roll. Ab. Tit. Fine, O. pl. 3. 1 Leon. 285. 12. A husband and wife joined in exchanging Anon. lands, which were the estate of the wife, with a stranger, for other lands; and the exchange was executed. The husband and wife aliened the lands taken in exchange, and levied a fine of them to the alienee. It was resolved that the wife might enter on her own lands after the death of her husband; and that her joining in a fine of the lands taken in exchange, did not bar her from electing whether she should claim her own lands, or those taken in exchange. 13. A married woman may bind herself by a warranty in a fine sur concessit; and an action of covenant will lie against her upon such a warranty. 1 Mod. 290. 14. Thus where a husband and wife levied a fine Wotton v. Hale, sur concessit to A. for 99 years, if he should so long 2 Saund. 180. live; with a general warranty against all persons during the said term: the husband died; and it was determined that an action of covenant lay against the wife, upon the warranty. Reason v. Sacheverell, 15. As a married woman may, by joining with her husband in a fine, make an absolute alienation of her estate, so she may also make a conditional and therefore if she and her husband mortgage her 1 Vern. 294. estate by fine, it will bind her and her heirs. one; 16. It was formerly held that a married woman did not bar herself of her right to dower, by joining with her husband in a fine of lands, whereof she was dowable; because before the death of her As to Dower lowd. 373. and Jointure. |