if a gift in tail be made to a villein, and the lord enters, he hath a base fee. Then if a base fee may be created out of an estate tail, there is great reason that the bargainee, &c. of the tenant in tail should have it. 2. The tenant in tail has the whole estate in him, and therefore there is no reason why he cannot divest himself of it by grant, bargain and sale, &c., since the power of disposition is incident to the estate of every one. 3. It is no prejudice to the issue in tail, and therefore, no breach of the statute de donis. Indeed there are strong words in the act, for restraining alienation to the prejudice of the issue in tail, where it says, "quod finis ipso jure est nullus;" yet the construction of the said words hath always been, that the entry of the issue is tolled by such fine and he is driven to his formedon. Therefore, if an act which drives his issue in tail to his formedon will not be a breach of the statute, much less will it be a breach of the statute to drive the issue in tail to enter, to avoid a bargain and sale by his ancestor. 4. As to authorities, Seymour's case1 110 Co. 95. is in point, where it is held, that the bargainee of tenant in tail has a descendible estate, of which his wife shall be endowed; and that a fine afterwards levied by the tenant in tail barred the issue in tail, but did not enlarge the estate of the bargainee, the estate tail being before converted into a base fee by the bargain and sale. 5. In the Case of Fines2, the case of Littleton3 is put and consi- 3 Rep. 84. dered, and there it is held, that the words ought not to be literally understood; namely, that the grantee in such a case hath only an estate for the life of the tenant in tail, and that his estate should be absolutely determined by the "death of the tenant in tail, but that it was not a discontinuance, nor had the grantee any durable or fixed estate, but for the life of the tenant in tail; but that the issue after his death, might at his pleasure determine it4." 6. If tenant in tail makes a lease for years, not warranted by the statute5, the issue in tail must enter to avoid it, and if he accept rent due to him afterwards, that will make the lease good as to him, which could not be if the lease was actually determined by the death of the tenant in tail. And 7thly, in cases of exchange, the estates exchanged must be equal in quantity; and yet tenant in tail may exchange his lands with tenant in fee of other lands, and it will be a good exchange till avoided by the issue in tail, which proves there may be a fee simple passed out Co. Litt. 51. a. of the tenant in tail, and good until avoided by the issue7. 3 Sect. 613. 3 Rep. 84 b. 32 Hen. 8, c. 28. 7 11 Mod. 20. 'See Co. Litt. 331. a. n. 1; Goodright v. Mead, 3 Burr. 1703. 2 Co. Litt. 325. a. n, 1. The result of this argument is, that if tenant in tail conveys the lands entailed by bargain and sale, lease and release, or covenant to stand seised to the use of another and dies, a base fee passes by the conveyance, and the estate continues until it is avoided by the issue in tail by entry1. The effect, therefore, of a feoffment, was to reduce the estate of the tenant in tail to a right of action, which means the right to bring a real action;—of a bargain and sale, to reduce his estate to a right of entry, which, perhaps, in the earlier periods of our history, might mean the right to enter and take possession brevi manu; but at the present day, and for a very long period past, it is tantamount to the right of bringing an action of ejectment. In the former case, the estate of the issue in tail is said to be discontinued, in the latter, it is said to be reduced to a right of entry. The distinction between these two species of legal operation has been thus explained by Butler 2: "In the case of a disseisin, while the possession remains in the disseisor, it is a mere naked possession unsupported by any right; and the disseisee may restore his possession, and put an end to the possession of the disseisor by an entry on the land, without any previous action; but, if the disseisor dies, the heir comes to the possession by a lawful title. It was the same by the old law; if the disseisor aliened, the alienee came in by a lawful title. By reason of this lawful title, the heir-at-law in the first instance, and the alienee in the second, acquired a presumptive right of possession, which was so far good, even against the person disseised, that he lost by it his right to recover the possession by entry, and could only recover it by an action at law. When the right of entry was thus lost, and the party could only recover by action, the possession was said to be discontinued." SECT. 4.-OF FINES. Fines at common law, 202.-Fines with proclamations, 206.— Amendment of fines, 222.-Reversal of fines, 224.-Collateral effects of a fine, 230.-Covenant to levy a fine, 232. Fines at common law.]-The effect, therefore, of a bargain and sale, covenant to stand seised, or lease and release, by tenant in tail, was to create a base fee, voidable by the entry of his issue on his death. By such an assurance, therefore, he could not bar or defeat the entail; and, had no other expedient been fallen upon, the perpetuity attempted to be created by the statute de donis, would now have been in full vigour. At a very early period, however, means were found to defeat the statute, through the medium of judicial proceedings. At the period of passing this act, that species of assurance known under the name of a fine had been long in existence*, and had, from its binding force, been applied extensively to almost every species of transaction connected with the transfer of property. At common law, a judgment pronounced by one of the superior courts was binding upon the rights of the litigating parties; and hence, a fine, whatever it might have been in its origin1, having become to be "I suppose it is beyond doubt, that fines were very anciently used in this kingdom. There are in this collection some of great antiquity. But I shall not take upon myself positively to state when they were first brought into use. It is said, 'to avoid contention in inheritances, fines were devised by the founders of our law, for no point of our law is of greater antiquity.' (Plowd. 368 b). And Sir Robert Catlyn, a learned lawyer, and chief justice of England, in the beginning of Queen Elizabeth's reign, in the case of Stowell v. Lord Zouche, cited, as Plowden reports, Many fines of antiquity, namely, some before the Conquest, touching the possession of the Abbey of Crowland, and divers since the Conquest, proving the continuance of fines down from the Conquest until the time of Edward 1, in whose reign statutes were made concerning fines.' But are there in truth to be seen any Final Concords, properly so called, of the ages before the Conquest? May one, without offence, doubt of his exactness in this particular? However, in this case I affirm nothing. Without prejudice, then, to any man's opinion upon that point, and with an extreme deference to the Madd. (Form. Ang. xvii.) states 1 Madd. Form. Ang. xviii. Maddox, Form. xvii. 2 Bract. 436 a. considered as the composition of a suit actually commenced,-the concord of the fine coming in lieu of the judgment, which would otherwise have been pronounced, in case the parties had not agreed to terminate the suit by mutual agreement,—was allowed to have the same effect in binding the rights of the parties, as if judgment had been regularly given; and the delivery of possession by the sheriff, in pursuance of the writ of habere facias seisinam which issued for that purpose, being equal in notoriety to the ceremony of livery of seisin, it became an established principle that a fine transferred not only the possession, but the right of possession. On these principles, a final judgment in a writ of right, and a chirograph of a fine which was equivalent to it, were originally considered as perfect bars to all claims whatever.when perfected, if necessary, by the delivery of possession,—from the moment they were completed1. Such was the operation of a judgment, or fine, in the time of Bracton, who justifies it on the ground, that sufficient time was given, both in a real action and the completion of a fine, for all persons, who had any right, to make their claim2. A considerable change, however, took place in this respect, towards the end of the reign of Henry 3, or the beginning of that of Edward 1; for, in the time of the latter prince, we are told by 3 Lib. 6, c. 53. Fleta3, that all persons were allowed a year and a day to claim against a judgment, or fine. If no claim was made within this period, the fine then became a perpetual bar to all persons whatsoever; and thus was obtained a means of acquiring land, which, after a certain time, secured the title of the purchaser against every kind of claim. The solemn and obligatory character of this assurance, notwithstanding the express prohibition of the statute de donis, would readily occur, as the most likely means of evading the provisions of the statute de donis, and we have evidence of its being applied at a very early period to this purpose. As the fine derived its operation from the solemn judgment of a court of law, it could not be set aside without some proceeding, which, in fact, amounted to a reversal of that judgment; the issue, therefore, were obliged to resort to an action to restore their estate; in other words, the fine converted the estate of the issue in tail into a right of action, or worked, what was technically called, a discontinuance. The fine had no operation on the interests of the persons having estates in reversion or remainder expectant on the entail-its effect merely was to convert the estate tail into a base fee, determinable by the entry of the issue in tail, if they did so within the time allowed for this purpose, or,—if they did not pursue their right within this period, then upon failure of the issue inheritable under the entail. Such was the nature and operation of a fine at common law. It will not surprise us that an assurance of such great weight and solemnity, and of such binding force, attracted the attention of the legislature at an early period; and accordingly we find, that in the reign of Edward 1st, the statute de modo levandi fines1 was passed, for the express purpose of ascertaining the 18 Edw. 1, manner in which fines should be levied. After regulating the st. 4. forms which should be pursued, the statute proceeds thus: "And the cause wherefore such solemnity should be used in 'levying a fine is, because the fine is so high a bar, and of so great a force, and of so strong a nature in itself, that it con"cludeth not only such as are parties and privies thereto and "their heirs, but all other persons in the world, being of full age, out of prison, of good memory, and within the four seas, "the day of the fine levied, if they make not their claim of their "action within a year and a day on the foot of the fine." No time being prescribed for persons labouring under these disabilities for pursuing their rights, they were not obliged to make their claim within a year and a day after the removal of their disabilities, but were allowed to prosecute it at any time thereafter. No exception, it will be seen, was made in this statute, for married women, on the ground, probably, that their husbands were always capable of claiming for them. If, however, the husband happened to be under age, at the time when the fine was levied, his infancy, although the wife was of full age, secured her right for ever, it being his duty to make the claim. Upon this statute it was determined2, in the case of a tenant for life, remainder for life, remainder in fee, that if the first tenant for life aliened his estate, and the alienee levied a fine, the remainder-man for life might enter and avoid the fine, both as to himself and the remainder-man in fee; but if he failed to do so, not only himself, but the remainder-man in fee, were for ever barred, and a claim by him would not have saved his right: the consequence was, that remainders and reversions so circumstanced were always in peril, and were, in fact, frequently Co. Litt. 262. b. |