however, said, in a modern case, that this doctrine is Doev.Helier, 3 Term R. too general; for unless there is a change of posses- 162. sion, the fine will be void against the lord. Estate. 37. It has been shown, that in a fine sur done, A Fine sur Done, Grant, grant, and render, the cognizee is but an instrument, and Render, who has a seisin only for an instant, which is not gives a new sufficient to entitle his wife to dower; yet it has ante, c. 3. been adjudged, that this species of fine operates as a feoffment and re-enfeoffment, and therefore gives a new estate. a person, § 30. And alters the Descent. 38. In consequence of this doctrine, if a seised of an estate ex parte materna, levies a fine sur done, grant, and render, and takes back an estate to Tit. 29. c. 3. himself and his heirs, the nature of the descent is thereby altered, and the estate will afterwards descend to the heirs ex parte paterna. 39. I. S. being seised of lands ex parte materna, he and his wife levied a fine to I. N. and I. B., and § 49. Price v. 1 Salk. 337. they by the same fine granted and rendered the same lands to the use of the said I. S. and his wife, and the Holt, 253. heirs of their two bodies, remainder to the right heirs of I. S. The husband and wife died without issue; and the question was, whether the remainder descended to the heirs on the part of the mother, or on the part of the father. It was argued on the one side, that this seisin of the cognizee was merely fictitious; for if the cognizee had a term for years in the land, it would not be merged: that it was like the case of a surrender of a copyhold into the hands of the lord, who was thereby only a mere instrument: therefore, that nothing was altered by the fine, but the estate remained as before. On the other side it was insisted, that the cognizee could not render the estate, unless he had it in him; and that the grant and render operated as a feoffment and re-enfeoffment. The Court held, that the estate was once in the cognizee, otherwise he could not give it back; that the grant and render was a conveyance at common law, and made the cognizor a new purchaser, as much as a feoffment and re-enfeoffment: so that the remainder descended to the heirs on the part of the father. 40. It is observable, that this is the only sort of fine which gives a new estate; for if a person seised ex parte materna levies a fine sur cognizance de droit, &c., and either makes no declaration of the uses of it, or declares it to be to the use of himself and his heirs, the lands will still descend ex parte materna ; because it is the old use, which, consisting in trust and confidence, will follow the nature of the land, and will descend as the land would have descended, if no alteration had been made; and it is totally immaterial whether the use be expressly declared on a fine of that kind, or permitted to arise by implication. TITLE XXXV. FINE. CHAP. XIII. What Persons, Estates, and Interests are not barred NOTWITHSTANDING the great force and effect of a fine, yet there are some particular persons, estates, and interests, to which its operation does not extend. 2. By the common law, no laches can be imputed The King. to the King; and therefore no delay or omission on his part, in making a claim, will bar his right. From thence has arisen the maxim, Nullum tempus oc- 1 Inst. 41 b. currit regi; for the law supposes his Majesty to be always busied for the public good, and therefore that he has not leisure to assert his rights within the time prescribed for other persons. It follows, from this principle, that the King cannot be barred by a fine to which he is not a party, nor is the royal prerogaTit. 31. c. 2. tive in this instance taken away by the statute $ 59. 9 Geo. III. c. 16. Ecclesiastical 3. Ecclesiastical corporations, and in general all Corporaecclesiastical persons, who are seised in right of their tions. churches only, and have not an absolute estate in their possessions, being restrained from alienation by several statutes, are not only prohibited from levying fines, but cannot even bar their successors by their non-claim. Magdalen 4. Thus, in a case in 13 Ja. I. where a fine and College Case, five years non-claim was set up in bar to an eject11 Rep. 78 b. 1 Roll. Rep. ment, brought by the Master and Fellows of Magdalen Watson, 427. College, one of the points was, whether the Master 151. Howlett v. 3 Keb. 775. ante, c. 11. and Fellows were barred by the fine and non-claim: and it was resolved, that the right of the College was not barred; for the words of the stat. 18 Eliz., which prohibits all ecclesiastical corporations from alienation, were, "That all leases, gifts, grants, feoffments, conveyances, or estates, to be made, had, or suffered by any master and fellows of any college, &c. to any person or persons, &c. (except leases), shall be utterly void and of none effect, to all intents, constructions, and purposes." So that when a fine was levied, and no claim was made for five years, there was a conveyance permitted and suffered by the master and fellows of the college; and it would have been of no effect to have prohibited the master and fellows themselves from making conveyances their lands, if they were allowed to have a power, by their permission and non-claim, to bar their successors. A bishop, dean, or vicar, may, however, be him of self barred by his own non-claim, as has been stated in a former chapter. 5. It is a rule of law, that no estate or interest can be barred by a fine, unless it is divested out of the real owner, either before the fine is levied, or by the operation of the fine itself: that is, unless the real owner is put out of possession of such estate or interest; and that while he continues in possession, a fine will not affect him. Estates not divested. This doctrine is stated arguendo in Saffyn's case 5 Rep. 123 b. in the following words: "No fine levied with procla mations shall bind any but those who are put out of possession, and have but a right; for if their estate or interest be not divested out of them, but remains in them as it was ab initio, they need not make an entry or claim to that which never was divested." 6. Lord Coke states the second resolution in Mar- 9 Rep. 106 a. garet Podger's case thus: "That no fine nor warranty shall bar any estate in possession, reversion, or remainder, which is not divested and put to a right; for he who has the estate or interest in him cannot be put to his action, entry, or claim, for he has that which the action, entry, or claim would vest in him or give him." There is a considerable inaccuracy in this passage, if the words " divested and put to a right" are understood conjunctively, and in that strict technical sense which the law annexes to them. The word "divest" signifies nothing more than a mere deprivation of the possession*. But the words, "put to a right," have a much more extensive signification, as they mean a de * Divest, devestire, is contrary to invest; for as investire signifies possessionem tradere, so devestire means possessionem auferre. COWELL'S Dicts |