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2. A subject's grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant. Thus in a grant of the profits of land, free ingress, egress and regress are inclusively granted. But the king's grant shall not enure to any other intent, than that which is precisely expressed in the grant. As if he grants lands to an alien, it operates nothing, for such grant shall not enure to make him a denizen, so that he may be capable of taking by grant.
3. When it appears, from the face of the grant, that the king is mistaken or deceived, either in matter of fact or of law, or if his own title to the thing granted be different from what he supposes, or if the grant be informal, or contrary to the rules of law, the grant is void. To prevent deceits of the king, with regard to the value of the estate granted, it is provided by statute of Henry IV, that no grant of his shall be good, unless in the grantee's petition for it, express mention be made of the value of the lands.
III. FINES OF LANDS AND TENEMENTS.
Divisions: 1. The nature of a fine. 2. Its several kinds. 3. Its force and effect.
1. Its Nature. A fine is a feoffment of record, or more properly an acknowledgement of a feoffment on record. It has at least the same force and effect as a feoffment in the conveying and assuring of lands, though it is one of the methods of transferring estates of freehold by common law, in which livery of seisin is not necessary to be actually given. It is an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices, whereby the lands become the right of one of the parties. In its original, it was founded on an actual suit, commenced at law for the recovery of the possession of land or other hereditaments, and the possession thus gained was found to be so effectual, that fictitious actions were commenced to obtain the same security.
Name and Antiquity. A fine is so called, because it puts an end not only to the suit commenced, but to all other suits concerning the same matter. Fines are of equal antiquity with the rudiments of the law itself, even prior to the Norman invasion. The statute of Edward I declared and regulated the manner in which they should be levied and carried on.
(1.) Suit Commenced. The party to whom the land is to be conveyed or assured commences a suit against the other, generally an action of covenant, the foundation of which is a supposed agreement, that the one shall convey the lands to the other, on the breach of which agreement, action is brought. · On this writ, there is due to the king a primer fine.
(2.) Leave to Agree the Suit. As soon as the action is brought, the defendant makes overtures of settlement. The plaintiff having given pledges in court to prosecute his suit, which he endangers, if he deserts it without license, applies to the court for leave to adjust the matter. This leave is readily granted, for another fine is then due the king by his prerogative:
(3.) The Agreement Itself. This is usually an acknowledgement from the deforciant, or him who keeps the other out of possession, that the lands in question are the right of the complainant. From this recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. The acknowledgement must be before a judge of the common pleas court, or two authorized commissioners in the county. A feme covert should be privately examined.
(4.) Note of the Fine. This is only an abstract of the writ of covenant and the agreement, naming the parties and the parcels of land. This must be enrolled of record.
(5.) Foot of the Fine. This is the conclusion of the fine, and includes the entire matter, reciting the parties, the time and place, and before whom it was acknowledged or levied. Indentures are made of these facts, and delivered to the parties, beginning thus: “this is the final agreement," and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.
Notoriety of the Fine. By statute, more solemnities are added, to render the fine more public and less liable to be levied by fraud and covin; by the reading of a note of the fine openly in court, by enrolling it of record in court, and by the posting in the room of a table of the fines of the county for each term.
2. Four Kinds of Fines. (1) A fine upon the acknowledgement of the right of the cognizee, as that which he has of the gift of the cognizor. This is the best and surest kind of fine, and is said to be a feoffment of record, the livery, thus acknowledged in court, being equivalent to an actual livery, so that the assurance is a confession of a former conveyance.
(2) A fine upon acknowledgement of the right merely, and not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest, which is in the cognizor. Of such reversions, there can be no feoffment, or donation with livery supposed, as the possession during the particular estate belongs to a third person.
(3.) A fine “sur concessit” is where the cognizor, to end disputes, though he acknowledges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years. This may be done by reserving a rent or the like.
(4.) A double fine, comprehending the first and third, was used to create particular limitations of estates.
The first of these species of fine is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seisin in law, without an actual livery. Hence it is called a fine executed, whereas the others are but executory.
3. Force and Effect of a Fine, These depend on the common law, and the statutes of Henry VII and of Henry VIII. By the former statute, the right of all strangers is bound, unless they make claim by action or lawful entry within five years, except feme coverts, infants, prisoners, persons non compotes, or beyond sea; who have five years time granted them, after removal of disability. The common law gave claimants only a year and a day. The statute of Henry VII was believed to have been intended to bar estates-tail in order to unfetter the estates of his powerful nobility, and lay them more open to alienations. The statute of Henry VIII removed all difficulties by declaring, that a fine levied by a person of full age, to whose ancestors lands had been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail.
Defined. A fine is a solemn conveyance on record, from the cognizor to the cognizee, the persons bound thereby being parties, privies and strangers.
Parties. These are either the cognizors or the cognizees, who are concluded by the fine, and barred of any latent right they might have, even under the impediment of coverture.
Privies. Privies to a fine are such as are in any way related to the parties who levy the fine, and claim under them by right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail, the vendee, the devisee, and all others, who must make title by the persons who levied the fine. For the act of the ancestor shall bind his heir, and the act of the principal his substitute, or such as claim under
any conveyance made by him, subsequent to the fine so levied.
Strangers. These are all other persons, except only parties and privies. These are also bound by a fine, unless within five years after proclamation made, they interpose their claim, provided they are under no legal impediments, and have then a present interest in the estate. The impediments are coverture, infancy, imprisonment, insanity and absence beyond sea. Five years are allowed such parties, after the impediment is removed. Persons having only a future interest, as those in remainder or reversion, have five years allowed them to made claim, after such right accrues. They must bring an action within one year after making the claim, or they are barred.
When a Fine is of no Effect. To make a fine available, the parties must have some interest or estate in the lands to be affected by it. Else it were possible, that two strangers might conspire to defraud the owners, by levying fines of their lands, for if discovered, they would not suffer, but remain in statu quo, whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner, if claimed in proper time. If a stranger officiously interferes in an estate, which in no wise belongs to him, his fine is of no effect, and may be set aside, unless by such as are parties or privies thereto. If a tenant for years, who has a chattel interest and no freehold in the land, levies a fine, it operates nothing. It is usual for him to make a feoffment first, to displace the estate of the reversioner, and create a freehold by disseisin. IV. COMMON RECOVERIES.
Origin. These were invented by ecclesiastics to elude the statutes of mortmain. They were afterwards encouraged by the courts to put an end to fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon.
1. Their Nature. A common recovery resembles a fine, in that it is a suit, either actual or fictitious, and in it, the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery is in the nature of an action at law, not immediately compromised like a fine, but carried on through every stage of proceeding
Illustrated. Suppose A tenant of the freehold is desirous to suffer a common recovery, in order to bar all entails, remainders and reversions, and to convey the same in fee-simple to B. To effect this, B sues A for the lands, alleging in the writ, that A has no legal title, but that he came into possession after C had turned the demandant out. The subsequent proceedings are made up into a record or recovery-roll. A then calls on D, who is supposed at the original purchase to have warranted the title to A, and thereupon prays that D may be called in to defend the title which he so warranted. This is called the voucher or calling of D, the vouchee, to warranty. D then appears, is impleaded, and defends the title. Whereupon B, the demandant, asks leave of the court to imparl, or confer in private with D, the vouchee. . This done, D disappears or makes default. Then judgment is given for B, now called the recoveror, to recover the lands against A, the recoveree, and A has judgment to recover of D lands of equal value, in recompense for the lands so warranted by him and lost by his default. This is called the recovery in value. But D having no lands of his own, who from being frequently so vouched, and usually being the crier of the court, is called the common vouchee, A has only a nominal recompense for the land so recorered against him by B, which lands are now absolutely vested in him by judgment of law, and seisin delivered by the sheriff. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple from A, the tenant in tail, to B, the purchaser.
Double Voucher. Sometimes there is a double or treble voucher, as the exigency of the case may require, and indeed it is usual to have a double voucher, by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee. For if a recovery be had immediately against tenant in tail, it bars only such estate in the premises, of which he is then seised, whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right he may have in the lands recovered.
Barring Issue in Tail. This supposed recompense in value is the reason why the issue in tail is held to be barred by