lives. The lord of the manor, by deed indented and enrolled, bargained and sold the lands to John Podger in fee, who having thus acquired the freehold, levied a fine thereof with proclamations, and died two years after; whereupon the estate descended to his son Marmaduke. Ten years after the death of John Podger, Elizabeth Podger entered; and it was adjudged that her entry was lawful, for her estate in remainder not being divested, the fine had no effect on it.

17. In Saffyn's case it was agreed, that although a ante c. 10. term for years might be barred by a fine, if the lessee

were or might have been in possession, yet that so 5 Rep. 124b. long as a lessee for years had only an interesse termini, or future right, he was not affected by a fine. But when his term commenced, and he acquired a right to enter on the land, he then had such a present estate as might be divested, and which he might revest by entry; so that his non-claim for five years after the commencement of his term barred him, because from that time he was out of possession.

18. A person limited lands to the use of himself Edwards for life, and if he should settle a jointure on his wife, Hard 410. v. Slater, and make a lease for 31 years, to commence after his death, that then the trustees should stand seised to such uses. He made a lease accordingly, and then he and his wife levied a fine.

It was resolved that the lease was not barred, because being a future interest, it was not divested or displaced by the fine.

19. In the case of Corbet v. Stone, Lord Ch. B. Tit. 16. c. 3. Gilbert observes, that judgment was given for the 5 Bac. Ab. plaintiff, which proved that the grantee had an in- 740. 8° ed. terest, and that this interest was not barred by a fine and five years non-claim after the death of the

ante, c. 10.

grantor; not being touched, divested, or turned to a right.

20. The interests of tenants by statute merchant, 1 Mod. 217. statute staple, and elegit, cannot be barred by a fine, until they have extended the lands, or pursued their rights in some other manner; for until then they have no right to enter on the lands, and therefore cannot be put out of possession.

1 Cha. Ca. 268.

1 Freem. 211.

A Rent,

andCommon,

21. So where a person has a judgment for debt, and the debtor before execution aliens by fine, and five years pass, yet the creditor may still sue out execution.

22. Although the owner of a rent may bar it by Right of Way fine, yet a rent in the possession of a third person 5 Rep. 124 a. cannot be so barred. It is the same of a right of way, T.Raym.149. or common; because these being merely incorporeal Touch. 23. rights, collateral to and issuing out of lands, they

Cro. Ja. 60.

cannot be divested; for though a person who has a rent, right of way, or common, out of lands, be not in the actual enjoyment of them, yet by non-user only for a time, he does not cease to have a vested estate Tit. 23. 24. or interest therein; so that he still continues to be in & 28. actual possession. Such things being mere creatures of the law, and owing their existence to the construction thereof, they are always considered to be in the possession of those whom the law adjudges to have a right to them.

Mich. 23G.3.
Goodright v.
Board &
Jones, MS.

These principles have been confirmed by the Court of K. B. in the following case.

23. In an ejectment for lands in Surry, the jury found a verdict for the plaintiff, subject to the opinion of the Court on the following case. Lord Bolingbroke, being seised in fee of the premises in question, by indenture of lease, dated the 1st March 1765, demised the same to William Stevens for twenty-one years, at

the rent of 100%.; which lease, by mesne assignments, became vested in the defendant Board. Lord Bolingbroke, by a bond dated 24th July 1770, with warrant of attorney to confess judgment, in consideration of 3,000l. became bound to the lessee of the plaintiff in the penal sum of 6,000l., conditioned for the payment to her of an annuity of 500l. during his own life; and by indenture of the same date, Lord Bolingbroke, in consideration of the said 3,000l. and as a farther security for the annuity, demised the premises in question to the lessor of the plaintiff for ninety-nine years, if he should so long live, at a pepper-corn rent, with a proviso, that the lessor of the plaintiff should the next day re-demise the premises to Lord Bolingbroke for ninety-eight years and eleven months, if he should so long live, at the rent of 500l., which was accordingly done. Lord Bolingbroke, by lease and release dated the 9th and 10th March 1773, conveyed the premises, for a fair and valuable consideration, to the defendant Jones in fee, who had no notice of the annuity granted to the lessor of the plaintiff. Jones being in possession, levied a fine of the premises, with proclamations, in Trinity term 1775, to the use of himself in fee. The annuity was in arrear from the 24th January 1774, and the ejectment was brought in Hilary term 1782.

Lord Mansfield.-We have looked into all the cases, and have no doubt. It appears that the lessor of the plaintiff, and the defendant Jones, are both innocent: Jones is a purchaser for a valuable consideration, without any notice of the lessor of the plaintiff's title; the lessor of the plaintiff is not alleged at any time to have known of the conveyance to Jones; and there was no circumstance of notoriety attending the transfer to give her such notice; for the visible possession continued the

same after the sale as before it; the lease to William Stevens subsisting, and the payment of rent to Jones, instead of Lord Bolingbroke, carried with it no notoriety in the country. At the time of the conveyance there was no arrear of interest due to Mrs. Hare, and therefore she had no right to come upon the land in any shape. If she was, guilty of laches afterwards, there could be no mala fides in it with respect to Jones, as he is under no disadvantage from it so that it is a question of mere law between two innocent parties, whether the right and interest of the lessor of the plaintiff is barred by the fine and non-claim. This depends on one clear proposition, which is a general rule of law founded in good sense; and although it be difficult to find a rule without an exception, yet I know of none to this proposition. It is laid down in 9 Co. Rep. 106 a. "Resolved per totam curiam, that no fine nor warranty shall bar any estate in possession, reversion, or remainder, which is not divested and put to a right." This general rule is illustrated and applied to several cases throughout the books; and hence it follows, that no collateral interest can be barred by a fine; as a rent-charge, a right of common, &c. and the authority cited from Carter, 24, that a rent-charge may be barred by a fine, is totally mistaken; for, in looking into it, it appears to be thus: the owner of a rent-charge levied a fine of the land; the question was, whether the rent-charge passed by the fine; and a distinction was taken between a fine operating as a grant or as a bar. Here the fine operated as a grant, and not as a bar; the rule is universal, that a rent-charge in a third person is not barred by a fine and non-claim. Hence the parties to a fine, or one of them, must be in of a seisin or possession adverse to that interest which is to be barred; for, if

:

it be consistent with it, the fine does not divest it,
and therefore is no bar. Now, at the time of the
conveyance to Jones in 1773, Lord Bolingbroke had
no adverse possession: he had paid all arrears; and
as the lessor of the plaintiff had no right to come on
the land but for arrears, she had then no title in her.
At the time when the fine was levied, there was an
arrear of a year and a half due; but the lessor of
the plaintiff was not bound to resort to the lands
for her remedy, she had other securities; besides,
she could not enter on the lands, the lessee for years
being in possession; all she could do was by notice
to the tenant under the statute 4 & 5 Ann. c. 16.
which makes attornment unnecessary, either to
distrain or bring an action for the rent. In
In every
shape it is most clear, that the lessor of the plaintiff's
interest was not divested or turned to a right; and
therefore that it remained after the fine just as it did
before. Judgment was given for the lessor of the
plaintiff.

Jointures.

24. Where women having an estate in dower, or Estates in a jointure, discontinue or alien them, such discon- Dower and tinuances or alienations are declared to be void, by the statute 11 Hen. VII. c. 20.: and by the statute 32 Hen. VIII. c. 36. § 2. it is declared, that no fine levied by a woman of any such estate as is mentioned in the statute 11 Hen. VII. shall be of any effect.

Jure Uxoris.

25. By the statute 32 Hen. VIII. c. 28. § 6. it is Estates held declared, that no fine levied by a husband of any lands, whereof he is seised in right of his wife, shall be prejudicial or hurtful to the wife or her heirs.

The cases which have arisen on these statutes will e. 10. be stated in Title Recovery.