« ZurückWeiter »
1. Fines executed and Executory. | 16. Sur Cognizance de Droit 10. Fine sur Cognizance de Droit
21. Sur concessit.
HENEVER a judgement is obtained, whether Fines execuin an adversary or an amicable suit, the ted and
executory next step is to procure the execution of it, by obtaining the actual possession of the thing recovered; and for this purpose the law has provided, that in all real actions, the person who recovers shall have a writ of habere facias seisinam, directed to the sheriff of the county in which the lands are situated, commanding him to deliver the possession, according to the judgement,
2. Fines having at all times been considered as judgements, a writ of habere facias seisinam always c. 1, $ 6. issued to put the party who acquired the lands by a fine, into possession of them. When fines became common assurances, the purchaser, in order to avoid the trouble and expence of suing out a writ of possession, had in many instances livery of seisin given him in the country, and for his further assurance obliged the vendor to covenant that he would levy a fine to him ; but as the purchaser was
already in possession, no writ of habere, &c. was
necessary Co. Read. 2.
3. This practice gave rise to the distinction between fines executed, and fines executory. A fine executed immediately transferred the possession from the cognizor to the cognizee, who might therefore enter on the lands which had been conveyed to him by the fine, as soon as it was levied.
A fine executory did not, of its own force, give actual possession in law to the cognizee, as he could not immediately enter on the lands; but it was necessary that he should sue out a writ of habere facias seisinam, in order to gain possession of that which he had
acquired by the fine. 1 Inst. 320 a. 4. The cognizee of a fine could not distrain before
attornment, because an avowry came in lieu of an action, to which privity was necessary : for the same reason he could not have an action of waste, a writ of entry ad communem legem, in consimili casu,
or in casu provisc. But the cognizee might take Gilb Ten. those things which the lord could seise, or enter 102.
upon, without bringing any action; as a heriot, or lands fallen by escheat, or might enter for an aliena
nation of a tenant for life. 2 Inst. 469. 5. Where the cognizee of a fine executory, suf
fered a year and a day to elapse from the time when the fine was levied, without suing out a writ of habere facias seisinam, he must then have sued out a writ of scire facias, which might also be sued out by his heir.
6. By this latter writ the sheriff was commanded to warn the terre-tenants to appear and show cause, if they could, why the cognizee of the fine, or his heirs, should not have execution of the fine. And if at the return of the scire facias the terre-tenants
did not show some cause to the contrary, the plaintiff or cognizee became entitled of course to a writ of habere, &c.
7. If the party to whom the estate was limited by Touch. 4. a fine executory, was in possession at the time when such a fine was levied, he need not have sued out a writ of habere facias seisinam, for in that case the fine would enure by way of extinguishment.
8. If a fine executory is levied of a reversion, 1 Rep. 97 a. depending on an estate for life or years, or of a seigniory, or any thing which lies in grant, they will pass immediately; because it would be impossible to give actual possession of them.
9. Since the statute of uses, 27 Hen. VIII., writs Booth, 250. of possession are never sued out where fines are
6 Rep. 68 a. levied to uses : for the statute executing the posses- Tit. il. c. 3. sion to the use, the cognizee is immediately in
possession without attornment. And by the 4th and 5th Ann. c. 16. attornment after a fine is become unnecessary; so that; writs of possession are now totally disused.
10. Fines are again divided into four sorts; the Fine sur first of which is called a fine sur cognizance de droit de Droit
cognizance come ceo qu'il a de son done; this is the best and come ceo, surest kind of fine, for the deforciant, in order to keep 2 Comm.352 his supposed covenant with the plaintiff, of conveying him the lands in question, and at the same time to avoid the formality of an actual feoffment with livery of seisin, acknowledges in court a former feoffment or gift in possession to have been made by him to the plaintiff; so that it is rather an acknowledgement of a former conveyance than a conveyance originally made ; for t'e deforciant acknowledges, cognoscit, the right to be in the plaintiff or cognizee
as that which he had de son done, of the proper
gift of himself, the cognizor. 1 Inst. 50 'b. 11. This species of fine has been called a feoffment 1 Salk. 339. 3 Atk. 141.
of record, but this expression is by no means correct;
for there are cases in which a feoffment has a more Tit. 32. c. 4. extensive operation than a fine; and therefore Sir
William Blackstone has justly observed, that it might with more accuracy be called an acknowledgement of a feoffment
record. 12. The form of this fine is" And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid manor, &c. to be the right of him the said B., as that which the said B. hath of the gift of the aforesaid A.; and that he hath remised and quitclaimed from him the said A. and
his heirs, to the aforesaid B. and his heirs for ever.” Co. Read. 2. 13. This species of fine is executed, and therefore
gives the cognizee immediate possession of the land, It also passes an estate in fee simple without the word
heirs; for when the cognizor acknowledges the lands 1 lust, 9 b.
to be the right of the cognizee, it would be repug. pant and contradictory to his own acknowledgement to claim any estate in the lands, in remainder or reversion. Besides, in every judgement a fee simple was recovered ; and the cognizance, or acknowledge ment of the concord, coming in the place of a judgement, must have the same effect.
14. But if the concord be qualified by the express | Salk. 340.
words of the parties, as if the lands are limited to the cognizee for life, or to the cognizee and the heirs of his body, the fine will then only pass an estate for life or in tail; for it would be absurd that a greater estate should pass than that which the parties themselves have limited; and the preceding donation
or feoffment, which is acknowledged in the fine, may
. Ab. Tit.
Fine, O. nizance de droit come ceo, or on any other fine
pl. 14. which is executed; because, as the cognizance supposes a preceding gift, the cognizor cannot reserve to himself any thing out of the lands whereof he has already conveyed away the absolute property : so that the reddendum comes too late, when a precedent absolute gift, without any such reservation, is before acknowledged.
16. The second sort of fine is called a fine sur cog. Sur Cogninizance de droit tantum, or upon acknowledgement Droit tan
zance de of the right only, without the circumstance of a
1 Rep. 97 a. preceding gift by the cognizor. This species of fine is generally used to pass a reversionary interest, which is in the cognizor ; for of such reversions there can be no feoffment or grant supposed; as the free. hold and possession, during the particular estate, is vested in a third person.
17. This fine may also be used by a tenant for life, Co. Read. 3. in order to make a surrender of his life estate to the person in remainder or reversion; and it is then called a fine upon surrender.
18. The form of this fine is—" And the agree. ment is such, to wit, that the aforesaid A. hath acknow. ledged the aforesaid tenements, &c. to be the right of the said B.; and he hath granted, for himself and his heirs, that the aforesaid tenements which W. R. and M. his wife hold for the term of the life of G. of the inheritance of the said A. on the day on which this agreement was made, and which, after the decease of him the said G. ought to revert to the said A.