bably arose from that principle of law, that the legal existence of a woman is suspended during her marriage, or at least is incorporated or consolidated into that of her husband; or else from a fear that her husband should use any compulsion, in order to force his wife to part with her property or rights, in his favour. 6. But although a married woman was never bound by any deed or conveyance executed by her during the coverture; yet if an action was brought against a husband and wife for the recovery of any lands, whether the property of the husband or of the wife, and judgement was given against them, the wife was barred. 7. Thus it appears that till the statute of Westminster 2, even a judgement by default in a possessory action, against a husband and wife for the wife's freehold, was so far binding on her, that after her husband's death she could only recover her estate by bringing a writ of right. Now a fine being an accommodation of a suit, and a concord being deemed to have the same force and effect as a judgement in a real action; it follows that a married woman must have been as effectually barred by a fine as by a judgement in an adversary suit. Nor was it thought necessary to give the wife a power of claiming lands whereof she and her husband had levied a fine, because in that case she must have assented to it; whereas the husband might have put in a feint plea, or let judgement go against him by default, without the consent or even knowledge of his wife. note 1. 8. Mr. Hargrave, to whose learned note on Fines I 1 Inst. 121 a. am indebted for the preceding observations, has very properly suggested, that the common notion of a fine's owing its effect in barring married women to their secret examination by the Judges or commissioners, is incorrect. This remark is fully confirmed by a passage in Glanville, from which it appears that a married woman might appoint her husband as her attorney to acknowledge a fine for her, in which case it is highly improbable that she should have been examined. It may therefore be concluded that the private examination of a married woman was not a necessary circumstance at common law, and was probably first prescribed by the statute De modo levandi fines. 9. If a fine derived its efficacy in barring married women from the circumstance of their private examination, then that form might easily have 2 Inst. 673. been added to any other conveyance: whereas, by the common law, a bargain and sale by a husband and wife, on which the wife is privately examined, does not bind her, after the coverture is determined. Hob. 225. As to their own Estates. 10. But whatever were the principles upon which this doctrine was originally founded, it is now fully settled that a married woman, by joining with her husband in levying a fine, may bar herself and her heirs of all here state and interest in any lands whereof he is seised in her right. And where a fine is levied by a husband and wife, of lands which are the property of the wife, the whole estate passes from the wife, and the cognizee is in by her only; • Potest autem pater ita loco suo filium pro se ponere, et vice versa, extraneus quoque extraneum, uxor quoque maritum: cum quis itaque maritus, positus loco uxoris suæ, in placito de maritagio, vel de dote ipsius uxoris, per judicium, sive per concordiam, &c. Glanville, lib. 2. c. 3. vide also ante, c. 5. § 5. so that if the fine is afterwards reversed, the whole estate becomes again vested in the wife. 11. Where a fine is levied by a husband and wife, of lands which are the estate of the wife, the warranty should be from the husband and wife, and the heirs of the wife. 2 Rep. 57 b. 1 Leon. 285. 12. A husband and wife joined in exchanging Anon. lands, which were the estate of the wife, with a stranger, for other lands; and the exchange was executed. The husband and wife aliened the lands taken in exchange, and levied a fine of them to the alienee. It was resolved that the wife might enter on her own lands after the death of her husband; and that her joining in a fine of the lands taken in exchange, did not bar her from electing whether she should claim her own lands, or those taken in exchange. 13. A married woman may bind herself by a warranty in a fine sur concessit; and an action of covenant will lie against her upon such a warranty. persons 1 Mod. 290. 14. Thus where a husband and wife levied a fine Wotton v. Hale, sur concessit to A. for 99 years, if he should so long 2 Saund. 180. live; with a general warranty against all during the said term: the husband died; and it was determined that an action of covenant lay against the wife, upon the warranty. 15. As a married woman may, by joining with her husband in a fine, make an absolute alienation of her Reason v. Sacheverell, 1 Vern. 41. Dolin v. Coltman, estate, so she may also make a conditional one; and therefore if she and her husband mortgage her 1 Vern. 294. estate by fine, it will bind her and her heirs. 16. It was formerly held that a married woman did not bar herself of her right to dower, by joining with her husband in a fine of lands, whereof she was dowable; because before the death of her As to Dower Plowd. 373. and Jointure. 10 Rep. 49 b. Goodrick v. Prec. in Cha. Gilb. R. 18. 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. 17. Where a inarried 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. 21. In a subsequent case it was held, that where Haveringtons Case, Ow. 6. 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. |