b. 10 Rep. 49 6. husband, the wife had no right of action. But the law has been long since altered in this respect, and it has been fully established, that if a husband and wife join in levying a fine of the husband's estate, to a stranger, the wife will be thereby barred from claiming her dower ont of the lands comprised in the fine; because she, having nothing in those lands in her own right, her joining with her husband in a fine of them, could be for no other purpose than that of barring her from claiming dower. But a fine levied by the husband alone does not bar his wife of dower. Goodrick v. Shotbolt, Prec. in Cha. 333. Gilb. R. 18. 17. Where a married woman joins her husband in a fine, it will not only bar her from claiming dower out of the lands comprised in the fine; but will also bar her of any other interest in those lands. 18. A man on his marriage entered into a bond for 600l. to a trustee, with a warrant of attorney to confess judgement thereon, to be defeazanced on payment of 3007. to his wife, if she should survive him. The wife afterwards joined her husband in a fine of all his lands. It was agreed that the fine not only barred the wife from claiming dower out of the lands, but also destroyed her interest in the judgement. 19. Where a wife joins with her husband in levying a fine of lands, whereof her husband is seised in fee Tit. 11. c. 4. simple, without any declaration of uses, the use § 25. results to the husband, and a new right to dower accrues to the wife. 10 Rep. 49 b. 20. Thus it is laid down in Lampet's case, that if a husband and wife grant a rent by fine, or make a lease for years, rendering rent to the husband and his heirs, and afterwards the wife recovers dower; she shall hold it, charged with the rent and the term. In these cases the wife, though she joined her husband in a fine, was held dowable, subject only to the charges created by the fine; she must therefore have been entitled to dower out of the estate that resulted; for the uses of the fine being declared to be, to create a rent, or a term of years, the residue of the use resulted to the husband, and his widow became dowable of that residue. Case, Ow. 6. 21. In a subsequent case it was held, that where Haveringtons. husband and wife joined in a fine to a purchaser, and the husband alone declared the uses of it, the wife was concluded of her right to dower, because no contradiction of the wife appeared, that she did not agree Tit. 32. e. 12. to the uses declared by the husband*. 22. It follows from this case that a fine levied by husband and wife without any declaration of uses, by either of them, would not bar the wife from claiming her dower; for although a fine levied by a married woman will bar her from claiming dower, against any person deriving under a sufficient declaration of the uses of such fine, yet a fine will not have that effect in favour of the heir, claiming by descent from the husband, for he must admit that his ancestor died seised, which will give the widow a title to dower. 23. A married woman may also bar herself of her jointure, by joining with her husband in levying a fine of it; provided it be made pursuant to the statute 27 Hen. VIII. and be a good bar of dower; because the wife, by accepting such a jointure, before * Mr. Sanders observes, that in this case the fine operated, so far as concerned the wife, as an extinguishment of her right to dower, and there could be no resulting Use upon a Conveyance operating as the release of a right, and not as the transfer of an Estate. Uses, 3d ed. v. 1. 180. $32. 1 Inst. 36 b. Dyer, 358. pl. 49. Bulst. 173. 1 Leon. 285. Tit. 7. c. 1. $21. Solly v. Anon. marriage, barred herself of her right to dower, so But 24. Thus where A. upon his marriage, in consideration of 500l. portion, settled an annuity of 50l. a year on his wife, to be issuing out of particular lands. Afterwards A. and his wife joined in levying a fine of those lands to a mortgagee, who had notice of the annuity, which was excepted in the mortgage. It was contended that the wife had by this means extinguished her annuity; but it appearing that it was not the intention of the parties to destroy this annuity, the court decreed that it should not be affected by the fine. 25. So where a jointure was settled on a woman, issuing out of some houses in London, which were burnt down; the woman joined her husband in levying a fine of the houses, to create a long term of years for 1 raising money to rebuild them. And it was agreed that the woman should have her jointure out of the reserved rent of the houses. Adjudged that the fine did not affect the jointure. 26. Every kind of fine, with or without proclamations, and whether levied in the Court of Common Pleas, or in an inferior court, will bar a married woman; for fines derive this effect from the principles of the common law, and not from any statute. 27. It is a common practice for a husband to covenant that his wife shall join him in levying a fine, and Sir Joseph Jekyll has said, that in such cases the Court of Chancery has decreed the husband to do it, for that he has undertaken it, and must lie by it, if he does not perform it. Because (says Mr. Cox) in all these cases it is to be presumed that the husband, where he covenants that his wife shall levy a fine, has first gained her consent for that purpose; and that the interest in such covenant has been taken to be an inheritance descending to the heir of the covenantee. But after all, if it can be made appear to have been impossible for the husband to procure the concurrence of his wife (as suppose there are differences between them), surely the Court would not decree an impossibility; especially where the husband offers to return all the money, with interest and costs, and to answer all the damages. Effect of a Covenant that a married Woman shall levy a Fine. Hall v. Hardy, 3 P. Wms. 187. n. Vide Emery v. Wase, 28. The estate of a devisee may be barred by a fine Devisees. and non-claim, if the devisee has not entered on the lands devised. Heylock. Cro. Car. Thus where John Metcalf devised lands to John Hulm v. Gallant, an infant of the age of three years, in fee. The son and heir of John Metcalf entered on the 200. lands, and levied a fine of them. John Gallant the 5 Rep. 124 a. FrustEstates. Clifford v. Bagot, Id. 278. infant died before he attained his full age, leaving a sister who was then married. The Court was of opinion that the sister must make her claim within five years after the death of her husband, otherwise the fine would bar her. pay 29. Executors to whom lands are devised for ment of debts, may also be barred by a fine levied of the lands thus devised, if they do not make their claim in due time. 30. A fine is a good bar to a trust estate, as well v. Ashley, as to a legal one; because the cestui que trust has an Cha.Ca.268. equitable interest, and is therefore bound to pursue Salisbury 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; 1 Freem. 311. Gilb. Cha. 62. if five years pass without any claim being made, this fine will be a good bar, both to A. who had the legal 31. But with respect to equitable titles there is a distinction; for where the equity charges the lands only, a fine and non-claim is a good bar; but where it charges the person only, in respect of the land, it is then no bar. 32. 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 |