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marriage, barred herself of her right to dower, so
that she can claim nothing after her husband's death
but her jointure, which she herself concurred in de-
stroying by the fine. But if a jointure be settled on
a woman after marriage, in which case it is no bar of
dower, and she joins her husband in levying a fine of
it, this will not prevent her from claiming dower out
of any other lands whereof her husband was seised
during the coverture; because the jointure being no
bar of dower, the wife had her election on her hus-
band's death, either to accept of the jointure,
or to claim her dower; and therefore Lord Coke
says, that a fine levied of her jointure, before her
time of election, is no bar to her right of electing
dower, when her time of election does come.
where it appears not to have been the intention
of a husband and wife, in levying a fine, to bar the
wife's jointure, it will not affect it in a court of
equity.

But

24. Thus where A. upon his marriage, in consideration of 500l. portion, settled an annuity of 50%. a year on his wife, to be issuing out of particular lands. Afterwards A. and his wife joined in levying a fine of those lands to a mortgagee, who had notice of the annuity, which was excepted in the mortgage.

It was contended that the wife had by this means extinguished her annuity; but it appearing that it was not the intention of the parties to destroy this annuity, the court decreed that it should not be affected by the fine.

25. So where a jointure was settled on a woman, issuing out of some houses in London, which were burnt down; the woman joined her husband in levying a fine of the houses, to create a long term of years for

raising money to rebuild them.

And it was agreed

that the woman should have her jointure out of the reserved rent of the houses.

Adjudged that the fine did not affect the jointure. 26. Every kind of fine, with or without proclamations, and whether levied in the Court of Common Pleas, or in an inferior court, will bar a married woman; for fines derive this effect from the principles of the common law, and not from any statute.

27. It is a common practice for a husband to covenant that his wife shall join him in levying a fine, and Sir Joseph Jekyll has said, that in such cases the Court of Chancery has decreed the husband to do it, for that he has undertaken it, and must lie by it, if he does not perform it. Because (says Mr. Cox) in all these cases it is to be presumed that the husband, where he covenants that his wife shall levy a fine, has first gained her consent for that purpose; and that the interest in such covenant has been taken to be an inheritance descending to the heir of the covenantee. But after all, if it can be made appear to have been impossible for the husband to procure the concurrence of his wife (as suppose there are differences between them), surely the Court would not decree an impossibility; especially where the husband offers to return all the money, with interest and costs, and to answer all the damages.

Effect of a
that a married
Woman shall
levy a Fine.
Hall v.
Hardy,

Covenant

3 P. Wms. 187. n.

Vide Emery
v. Wase,
8 Ves. 505.

28. The estate of a devisee may be barred by a fine Devisees. and non-claim, if the devisee has not entered on the

lands devised.

Thus where John Metcalf devised lands to John Hulm v. Gallant, an infant of the age of three years, in fee. Heylock. Cro, Car. The son and heir of John Metcalf entered on the lands, and levied a fine of them. John Gallant the

200.

5 Rep. 124 a.

Trust Estates.
Clifford

v. Ashley,

Salisbury

v. Bagot, Id. 278.

1 Freem. 311.

infant died before he attained his full age, leaving a sister who was then married.

The Court was of opinion that the sister must make her claim within five years after the death of her husband, otherwise the fine would bar her.

29. Executors to whom lands are devised for payment of debts, may also be barred by a fine levied of the lands thus devised, if they do not make their claim in due time.

30. A fine is a good bar to a trust estate, as well as to a legal one; because the cestui que trust has an 1Cha.Ca.268. equitable interest, and is therefore bound to pursue the proper remedies for securing it: and if this were not the case, the operation of a fine would be much less extensive than it is, as there are so many trust estates now always existing. Thus if A. is seised of lands in trust for B. and a stranger enters on those lands, and levies a fine of them with proclamations; if five years pass without any claim being made, this fine will be a good bar, both to A. who had the legal estate, and to B. who was the cestui que trust.

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31. But with respect to equitable titles there is a distinction; for where the equity charges the lands only, a fine and non-claim is a good bar; but where it charges the person only, in respect of the land, it is then no bar.

32. Thus if a trustee levies a fine of the lands whereof he is seised in trust, to a person who has notice of the trust; or if a man purchases from a trustee, with notice, and levies a fine; the cestui que trust will not be barred: because the fine being levied to a person, or by a person who has notice of the trust, the land will continue subject to the trust; and therefore the Court of Chancery will not permit the

c. 14.

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. 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.

c. 14.

31. It should however be observed, that where a Vide infra, 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.

Year Book,

27 Hen. VIII.

pl. 4.

36. Before the statute of uses, if a cestui que use had levied a fine, it might have been avoided at any time 20. Bro. Ab. by the plea quod partes finis nihil habuerunt; because Tit. Fine, 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,

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