4. Although a fine may be void as to strangers, on Rowe v. Power, infra, account of the want of a freehold estate in one or

other of the parties, yet it may operate as a grant of an estate in remainder or reversion by the cognizee to the cognizor.

c. 14.

a Confirma

5. A fine may also operate as a confirmation of Sometimes as a former estate, which was before defeasible. Thus, tion. if a tenant in tail bargains and sells his estate tail in Seymour's fee, and then levies a fine to the bargainee, the fine Case, infra. will operate as a confirmation of the estate which passed by the bargain and sale. So if a tenant in tail executes a lease not warranted by the statute Ion v. Bull, 32 Hen. VIII. c. 28. makes a mortgage, confesses à judgment, or incumbers his estate in any other manner, and afterwards levies a fine, it will operate as a confirmation of all his prior charges and incumbrances.

1

2 Roll. Ab.

473.

Sambeach,

6. In the same manner, where a tenant for life, Holbeach v. and the remainder-man in tail, join in granting a rent- Winch, 102. charge in fee out of the land, and afterwards join in levying a fine to another person, the rent, which was before determinable, will be confirmed by the fine.

cord.

7. A fine being a judgment obtained by consent, Is an Estopin a fictitious suit, and recorded in a court of justice, pelon Reall those who are parties to it, and their heirs, are for ever concluded from averring or proving any thing against it; and therefore it operates, as to them, as an estoppel on record. Thus, although a fine levied by persons who have no estate of freehold in Touch. 14. the lands, is void as to strangers, yet it will operate as an estoppel against all the parties to it. So if two persons are seised in fee, and a stranger levies a fine to them, and to the heirs of one of them, the other will be thereby estopped from claiming any thing more than an estate for life in the lands.

Tit. 16. c. 8. $ 20. Vick v. Edwards, Id.

$ 10.

Lets in the

Reversion,

liable to In

cumbrances.
ante, c. 9.
§ 49.

8. A contingent remainder may be barred by a fine, which will operate as an estoppel, so as to bind the interest that may afterwards accrue by the contingency.

9. The operation of a fine levied by a tenant in and makes it tail, who has the immediate reversion in fee in himself, has been already stated: in such a case the reversion becomes liable to the incumbrances of all those who were entitled to it; so that if a tenant in tail, with the immediate reversion in fee in himself, makes a lease, acknowledges a judgment, or incumbers his estate in any other manner, and afterwards levies a fine, it will let in the reversion, and make it liable to all those incumbrances.

Sperling v.
Trevor,

7 Ves. 497.

Kynaston v. Clarke, Tit. 17. § 30.

Divests Re

mainders and Reversions

10. In the same manner, where a person is tenant for life, remainder to his first and other sons in tail, with the reversion in fee in himself, and becomes indebted by bond, or incumbers the estate in any other manner; if, after the death of such a tenant for life, his son levies a fine, it will let in the reversion in fee, and make it liable to his father's incumbrances. 11. Where a fine is levied by a tenant for life, it operates so as to divest and displace the estates in expectant on remainder, and also the reversion. Thus, if A. is tenant for life, remainder to B. in tail, reversion to 1 Inst. 251 b. C. in fee; B. and C. have immediate fixed and vested rights of future enjoyment; that is, estates in præsenti, though only to take effect in possession and pernancy of profits at a future period. Now, if A. levies a fine of his life estate, it will divest that right of future enjoyment, leaving only in B. and C. a right of entry, which they must exercise, in order to revest themselves in their former estates.

an Estate for

Life.

327 b.

Hard. 401, 2.

Tit. 16. c. 1. $ 9.

ante, c. 11. § 18.

12. One of the questions in the case of Goodright v. Forrester was, whether the fine levied by Philip

Browne divested the estate of Thomas Burton the reversioner?

Lord Ellenborough delivered the judgment of the Court. He said, they were all of opinion that the fine divested the estate of Thomas Burton; and that the answer of Mr. Serjeant Williams, viz. "That a remainder-man was not bound, since the stat. 4 Hen. VII. to look to his estate, till the determination of the preceding estates," was not satisfactory; for though that statute prevented the laches of antecedent remainder-men from prejudicing those who followed, as it did before the statute of non-claim, 34 Edw. III. ante, c. 8. § 17. yet it had not preserved the right of the subsequent remainder-men, by at all altering the immediate effect of the fine upon the remainders; but by giving all the remainder-men rights of entry, within five years after their respective titles should accrue, and thereby preventing their rights from depending on the conduct of the person whose right of entry accrued immediately on the forfeiture. And their opinion was, that the effect of Philip Browne's fine was to divest the estate in reversion of Thomas Burton, leaving in him only such right of entry as the forfeiture incurred by reason of the fine authorized him then to exercise; and if that should not be thereupon presently exercised by him, leaving in him a future right of entry, to be exercised within five years after the determination of the estates for life, and of the remainder of the term of forty years.

13. It was resolved in Margaret Podger's case, that if tenant for life accepts a fine from a stranger, it does not divest the estate of him in reversion or remainder.

14. It was also held in a modern case, that where a tenant for life levied a fine, and afterwards devised the premises, and died seised, the entry and con.

9 Rep. 106 b. 1Vent.257,8.

William v.
Thomas,

tinuing possession of the devisee, was no disseisin of the reversioner.

15. Anne Evans being tenant for life of the premises 12 East. 141. in question, levied a fine thereof in 1792, and died in 1808, having previously made her will, by which she devised them to the defendant Thomas, who upon her death took possession of the same, under the will, and so continued in possession till the time of bringing the action.

It was contended, in bar to the ejectment, that the fine was a forfeiture of the estate for life, and that the entry and possession of the devisee amounted to a disseisin, otherwise there could be no disseisin committed in the present times.

Lord Ellenborough said, that no act had been done by the defendant to make a disseisin. The ⚫ lessor of the plaintiff never was in possession, and therefore could not be disseised or put out of possession. It did not even appear that the defendant was cognizant of the claim of the lessor. Disseisin was formerly a notorious act, when the disseisor put himself in the place of the disseisee, as tenant of the freehold, and performed the acts of the freeholder, and appeared in that character in the lord's court. But no act of notoriety was stated to have been done by the defendant, as claiming to put himself in the place of the rightful freeholder. It would be carrying the doctrine of dis seisin further than any other case had done, to say that the mere taking of the rents and profits, as devisee of the land, was a disseisin, without meaning to do this adversely to the party entitled; for it did not even appear that when he entered he knew of the lessor's claim, Judgment, was given for the plaintiff.

Discontinues

an Estate

16. It has been already stated, that an estate tail Tail, and di- may be discontinued; and the nature and effects of

ΙΟ

mainders and

$ 13.

a discontinuance have been also explained. A fine vests the Reis one of those assurances by which an estate tail may Reversions. be discontinued; and the estates in remainder, as Tit.2.c.2.§ 6. also the reversion, divested and turned to a right; so Tit.29.c.1. that the remainder-man or reversioner is barred of Lit. § 597. 1 Inst.327 a. his entry, and has only a right of action left. For though the statute De donis says, et si finis super hujusmodi tenementum in posterum levetur, ipso jure sit nullus; yet these words were only held to extend to the right of the issue in tail, and not to their possession.

17. An estate tail is not discontinued unless the Tit.2.c.2.§8. remainder or reversion be discontinued; and therefore

if the reversion or remainder be in the Crown, the tenant in tail cannot by fine discontinue his estate.

18. A fine may either operate as a discontinuance in fee, or only for a particular period, according to the nature of the estate from the creation of which the discontinuance arises.

19. A tenant in tail levied a fine, to the use of Hunt v. Bourne, 1. S. for the life of I. S. with warranty; he afterwards 2 Salk. 244. levied a fine to the use of himself and his heirs, with warranty; and after that, bargained and sold to another and his heirs.

It was held by Lord Holt and Just. Powell,

1st, That the first fine made a discontinuance; but it was only a discontinuance for the life of I. S., because the wrongful estate that caused the discontinuance was only an estate for his life, and the discontinuance could remain no longer than that

estate.

2dly, That the second fine could not enlarge the discontinuance, because the estate raised by the fine returned back to the cognizor, and consequently the warranty which was annexed to it was extinguished;