But lets in the Reversion. 1 Show. R. 370. 1 Mod. 1. c. 12. Effect of the ' a Fine. tail has heirs of his hody; but does not bar the rights of the persons in remainder or reversion, provided they enter or claim within due time. 49. Where the tenant in tail has the immediate reversion in fee in himself, he may make a good title by fine only; for in that case the operation of the fine will be to merge the base fee acquired by the fine, and bring the reversion into immediate possession; it being determined that a fine takes away the protection given to estates tail by the statute De donis; and that they then, like all other particular estates, become subject to merger and extinguishment, when united with the absolute fee. This method of barring an estate tail is however attended with one considerable inconvenience, which will be mentioned in a subsequent chapter. 50. A fine has also an effect on estates tail, in consequence of the warranty which is always inserted in the concord. Now it has been stated in a former Tit. 32.c. 24. title that a collateral warranty is not prohibited by pa. 125. note. the statute De Donis; and in Mr. Robinson's book on Gavelkind, it is said to be a common mistake to suppose that all collateral warranties are taken away by the statute 4 & 5 Ann. c. 16., whereas that statute only makes void all warranties by tenants for life, and all collateral warranties made by any ancestor not having an estate of inheritance in possession. So that if A. be tenant in tail, remainder to B. his next brother in tail, which is a very common case, arising almost on every marriage settlement; and A. being in possession levies a fine, with warranty from him and his heirs, and dies without issue; this is a collateral warranty to B.; for B.'s title is by way of remainder, to which his elder brother is collateral, Lit. § 716. which shall bar, notwithstanding the statute, though no assets descend. 1 Vent. 321. 51. The right to levy a fine pursuant to these The Right to statutes is an incident so inseparably annexed to an cannot be levy a Fine estate tail, that any condition or proviso restraining restrained. or prohibiting it, is held to be repugnant to the nature Tit. 13. c. 1. of the estate, and therefore void. But a tenant in § 19. tail may be restrained from levying a fine at common law, because that is a tortious act, and only operates as a discontinuance to the issue. Statutes. 52. There are two clauses in the statute 32 Hen. Exceptions VIII. by which it is declared, that it shall not extend in these to any fine levied of any lordships, manors, &c. the § 3 & 4. owners whereof, by any express words contained in any special act of parliament, made subsequent to the stat. 4 Hen. VII. are restrained from alienation; or to a fine of any manors, lands, tenements, or hereditaments given, granted, or assigned to the persons levying such fine, or to any of their ancestors in tail, by virtue of any letters patent of the Crown, or by virtue of any acts of parliament, the reversion whereof, at the time of such fine levied, being in the Crown; but that such fines should be of like force and effect, as they were if this act had not been made. 53. In consequence of the last of these clauses, the operation of fines levied by tenants in tail, where there is a reversion in the Crown, depends on the efficacy of the stat. 4 Hen. VII. And it is laid down by Lord Coke, that in this case a fine will bar 1 Inst. 372 b.. the estate tail, but not the reversion; this doctrine is assented to by Dyer and Hobart, and is now consi- Dyer, 32. dered as law. But where an estate tail is granted by Hob. 332. the Crown, as a reward for services, it is protected. pl. 1. c. 13. Fines in inferior Courts no Bar to Issue in Tail. Elme's Case, Com. R. 624. by a particular statute, of which an account will be given in a subsequent chapter. 54. It has been stated that fines may be levied in courts of ancient demesne, and other inferior courts. They have however only the effect of fines at common law, which is to create a discontinuance, when levied of an estate tail; and do not bar the issue in tail from bringing a formedon. For no fine, unless it is levied with proclamations, pursuant to the stat. 4 Hen. VII. has the effect of barring an estate tail, Tit, 37, c. 2. except in the case of copyholds; of which an account will be given hereafter. TITLE XXXV. FINE. CHAP. X. Effect of Fines in barring particular Persons, Estates, THE 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. and non-claim is pleaded, a court of law will not 2 Black. R. Lawrence, 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. The 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. 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 |