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; vide infra, 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.

c. 14.

33. If however the title is merely a legal one, and 2 Atk. 631. a man has purchased an estate which he sees himself 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, as Lord Hardwicke observes, this would be carrying it much too far, for the defect upon the face of the deeds is often the occasion of the fine's being levied.

3. It should however be observed, that 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.

35. Having examined in what cases a cestui que trust may be barred of his trust estate, by the fine of a stranger; it will also be necessary to inquire how far a fine levied by a cestui que trust himself is a bar. to his trust estate.

Vide infra,

c. 14.

Year Book,

20. Bro. Ab. Tit. Fine, pl. 4.

27 Hen. VIII.

36. Before the statute of uses, if a cestui que use 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. But modern Chancellors have very much altered the law in this 2 Cha. R. 78. 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 otherVOL. V. P

Basket v. Pierce, infra, c. 11.

Penne v.
Peacock,

wise 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.

37. 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.

38. A woman before marriage conveyed, with her Forrest, 41. husband's privity, her estate to trustees, in trust to pay the rents and profits to her sole and separate use for her life; and after her decease, in trust for such uses as she, whether sole or covert, should by her last will limit and appoint; and for want of such appointment, then to her own right heirs for ever.

The husband mortgaged part of the lands for a term of 500 years, and then a fine was levied by the husband and wife, who both declared the uses of the fine, as to the mortgaged premises, to be to the plaintiff, the mortgagee, for securing the payment of his principal and interest.

The wife, by order of the Court, answered separately, and insisted in her answer that she had been forced to join her husband by duress, insinuating the mortgage to be fictitious, and in trust for the husband, in order to defraud her. She further insisted that there was no power reserved to her to dispose of her real estate, but by her last will; that she had no estate in the premises, and that the fine and mortgage were. both void.

It was argued for the married woman, that the legal estate being in the trustees, the parties to the fine had not such an estate in them whereof a fine could be levied, to bar the wife's right. And that this being a mere naked power, without any interest,

could not be barred by the fine, but remained still in the wife, by force of the first conveyance.

Lord Talbot said, the chief objection was, that the legal estate being in the trustees, the husband and wife had not such an estate in the land whereof a fine could be levied, to bar the wife's right. But as to that, it was very well known that the operation of fines and recoveries was the same upon trusts as upon legal estates: and if so, it must inevitably follow, that an estate for life, limited to the wife, and the remainder limited to her own right heirs, in default of any appointment made by her last will, were both disposed of by the fine; and if no such remainder had been limited by it, as the estate was the wife's own, and moved originally from her, whatever was not conveyed, would have remained in her, and consequently been barred.

Decreed the trustees to convey to the mortgagee.

Years.

39. Terms for years may be barred by a fine, if Terms for the lessees were, or ever might have been, in possession.

40. Thus, where a lease for years was made of certain lands, to begin after the determination of a lease then subsisting; the first term expired, the second lessee neglected to enter, and the person in reversion entered, made a feoffment, and levied a fine with proclamations of the land. Five years passed without any claim being made by the second lessee; and the question was, whether he was barred by the fine.

Saffyn's Case,

5 Rep. 123. Cro. Ja. 60.

It was resolved, that although a lessee for years had not himself such an estate as would enable him ante, c. 5. to levy a fine, yet it did not therefore follow that his § 22.

interest should not be barred by a fine. That a term

for

years was within the statute 4 Hen. VII., being comprehended under the word interest; and as the

Ischam v.
Morrice,

object of that act was to prevent strifes and debates, it would not have that effect if its operation did not extend to long terms for years, which were then so

common.

41. This principle was carried so far, that where a Cro. Car.109. person, who had a long term for years, assigned it over to a trustee, in trust for himself, then purchased the freehold and inheritance of the lands, and levied a fine, it was resolved that the term was barred, the assignee of it having suffered five years to pass without making any claim.

2 Vent. 329.

1. Vent. 82.

Sid. 460.

Mr. Justice Ventris has taken notice of this case, and observed that the cognizee of the fine, who was also the purchaser of the freehold, did not know of the term, or that it was held in trust for him; so that if the fine had not barred it, he would have been cheated. But that where a term is assigned in trust for the person who is seised of the inheritance, and who is in possession, a fine levied by him will not destroy the term; because the owner of the inheritance is, in cases of this kind, tenant at will to his trustee. And this doctrine has ever since been ad

1 Lev. 272. hered to; so that it is now a settled principle, that terms for years, which are kept on foot by pur3 Keb. 564. chasers for the purpose of protecting the inheritance, are not barred by fine; otherwise fines would frequently weaken the interest of purchasers, instead of adding to their security.

Hanmer v. Lyton,

42. It is also fully established, that a term of years which is vested in trustees, on any other particular trust, except that of protecting the inheritance, may be barred by a fine and non-claim.

43. Thus, where A. had a term for years vested in him, for securing children's portions; B. being in 33 Comb. 67. possession, levied a fine, and five years passed without

1 Cha. R. 27.

any claim being made. It was resolved by the Court of K. B. that, admitting the term was in trust, it was barred by the fine.

If a person makes a lease for years, and still continues in possession, he is considered as tenant at will to the lessee for years; and if the lessor, being thus in possession, levies a fine, it will be no bar to the term for years because the possession of the tenant at will being the possession of the person in remainder, his interest is not divested; and it will be shown c. 13. in a subsequent chapter, that no estate is barred by a fine, unless it be divested out of the real owner.

44. We have seen that a copyholder cannot im- Copyholds." plead, or be impleaded, for his copyhold in the King's courts; and therefore cannot levy a fine of it in the Court of Common Pleas. But, notwithstanding, a copyhold estate is considered as an interest within the statute 4 Hen. VII., and therefore may be barred by a fine, levied by the person who has the freehold of the land.

§ 55.

45. Thus, Lord Coke says, if a copyholder be dis- Coke, Cop. seised, and the disseisor levies a fine with proclamations, and five years pass without any claim made, this is a bar both to the lord and to the copyholder.

Case,

46. It was resolved by the Court of Common Margaret Pleas in 10 Ja. that lands held by copy of court. Podger's roll were within the words and intent of the statute 9 Rep. 104.' 4 Hen. VII. For as leases for years were considered within the act, on account of the word interest; and because great mischief, vexation, and trouble would ensue, if leases for years were not within the act; so, greater mischief, vexation, and trouble would ensue, if the act did not extend to customary lands, held by copy; for a great portion of them was granted in fee simple.