FINES. Release and confirmation. the heirs and assigns of the survivor, and it was objected that the trustees could not make a good title to a purchaser, they not having a fee-simple under such devise, but only an estate of freehold during their joint lives, with a contingent remainder in fee to the survivor of them, the Lord Chancellor said, that a fine levied by the trustees would ensure a title to the purchaser, by estoppel, i. e. would estop or preclude the survivor from claiming the fee-simple which would accrue to him upon the decease of his companion (1). A fine will also, in some cases, operate as a release of the conusor's right; or as a grant; or a confirmation of a preceding estate in the conusee, according to the quality of the estate of which it is levied; as if one joint-tenant levies a fine of the land, this will operate as a release of his part to his companion. But if one coparcener in tail levy a fine come ceo, it will not enure by way of release, but by way of grant, because a fine is a feoffment of record, and one coparcener may enfeoff another; it will also, in this case be a discontinuance and alteration of the estate. If tenant in tail bargain and sell his estate-tail in fee, and then levies a fine to the bargainee, the fine will operate as a confirmation of the estate which passed by the bargain and sale. So if tenant in tail make a lease not warranted by the statute, or confess a judgment, execute a mortgage or other encumbrance, and afterwards levies a fine, it will operate as a confirmation of such encumbrances *. And so likewise if a tenant for life and the remainder-man iu tail join in granting a rent-charge h Co. Lit. 199, b, n. (83†). f Vick v. Edwards, 3 P. Wms. 372. i Seymour's case, 10 Co. Eustace v. Scawen, Cro. 95% 1 Eq. Ca. Abr. 257· Jac. 696. (1) But see objections to a fine being levied by such trustees, Fearn. Č. R. 283, and Co. Lit. 191, a, n. (78) also ante, vol. 3, c. 11, s. 5. in fee out of the land, and then levy a fine to another, the rent, which was before determinable, will be confirmed by the fine1. FINES. A fine will also operate as a revocation of a devise pre- Revocation. viously made of the land of which it is levied, upon the principle that, being an alteration in the devisor's estate, it evinces an intention in him to vary the disposition of it". But where this reason does not apply, as when it is levied to confirm and establish the estate of the devisor, it will not operate as a revocation". A fine will also, in some cases, operate to give a new estate to the conusor, as a fine sur grant et render; this fine, as has been before observed, being in the nature of a feoffment by him to the conusee (1), and a re-enféoffment by the conusee to the conusor. If, therefore, a person be seised of an estate, ex parte materna, and in a fine of this kind take back upon the render, an estate to him and his heirs, the estate will thenceforth descend to his heirs ex parte materna, because he by this means takes a new estate in the nature of a purchaser° (2). Holbeach v. Sanbeach, Winch. 102. See post, tit. Devise, and 3 Wils. 12. "See post, and Luther v. Kirby, 3 P. Wms. 169; Tickle v. Tickle, cited 3 Atk. 1 Inst. 31, b; Price v. (1) The seisinof the conusee of this fine has, however, been held to be an instantaneous seisin only, and does not therefore entitle his wife to dower out of the land. 1 Inst. 31, b. (2) But this species of fine, sur done, grant et render, the student is to observe, is the only fine which gives a new estate to the conusee, for if a person seised ex parte materna, as above mentioned, levy a fine sur conusance de droit come ceo, to the use of himself and his heirs, the land will nevertheless continue to descend to his maternal heirs, because it is still the old use, which will follow the nature of the land, and descend as the land would have gone if no fine had been levied of it. 1 Salk. 590; 2 Wils. 19; 2 P. Wms. 139. FINES. Let in encumbrances. Forfeiture. A further effect of a fine is when levied by a partic ula tenant to destroy his particular estate and let in the reversion, with its encumbrances, if any subsist upon it. Thus, if there be tenant in tail, with the immediate reversion to himself in fee, and he levy a fine of his estate, the estate-tail will be extinguished and merged in the reversion, and the reversion being by this means brought into immediate possession, it will become liable to the encumbrances of all those who were previously seised of it, as well as of him who levied the fine. If, therefore, such tenant in tail encumber his estate, and his heir in tail levy a fine, this will make him liable to discharge the encumbrances; for by extinguishing the intail, he lets in the reversion, and of course all the charges to which it was subject. So where a person tenant in tail, with remainder in fee, made a lease to commence in futuro, (which a tenant in tail has no right to do) and died, leaving issue a son, who before the commencement of his lease levied a fine, this was held, by barring the estate-tail, to let in the remainder, and confirm the lease. So also where a person who is tenant for life, remainder to his first and other sons in tail, reversion in fee to himself, encumbers his estate, and his son upon his death levies a fine, this will let in the reversion in fee, and make it liable to the encumbrances of his father'. Lastly, a fine, come ceo, if levied by a person who is tenant for life only of the land, operates as a forfeiture of his estate, as divesting the remainder or reversion, and being an attempt to create a greater estate than he can lawfully convey, and also as amounting to a renunciation of the feudal connexion between him and his lord. So if P 1 Atk. 51. 9 See Symonds v. Cudmore, 1 Show. 370; 1 Salk. 338; 4 Mod. 1; and see Earl of Shelburne v. Biddulph, 4 Bro. Par. C. 594. Kinaston v. Clark, 2 Atk. 204; but contra, had he suffered a recovery; Ibid. See ante, vol. 2, p. 162; Co. Lit. 251, b; Prec. Ch. 591; Gilb. Ten. 38. he accept such fine, it will equally incur a forfeiture upon similar principles; for though this acceptance does not divest the estate of him in reversion or remainder, yet it is a renunciation of the tenancy, by affirming, on record, the reversion to be in a stranger'. Where, therefore, A. was tenant for life, with remainder to B. for life, and A. levied a fine to B. it was adjudged a forfeiture of both their estates, for by their own act, and on record, they had denied the reversion to be in the lord, the one by giving and the other by receiving it". So where A. was tenant for life, remainder to B. for life, remainder to C. in tail, remainder to B. in fee, and B. the second tenant for life levied a fine come ceo, &c. to a stranger, it was adjudged to be a forfeiture of his remainder for life, and that upon the death of A., C. the next in remainder to B. might enter, because this species of fine, as has been before observed, supposes a prior gift in feesimple, which he could not lawfully make, whilst the estate for life of A. and the remainder in tail to C. were subsisting; and though A.'s remainder in fee at the time the fine was levied, was only contingent, i.e. expectant on the death of C. without issue, yet according to the doctrine before stated, the fine passes a fee-simple in possession by estoppel*. And if such tenant for life be of a rent, a common advowson, or other incorporeal hereditament lying in grant, it will be the same; for though in this case the reversion is not divested, yet it being a solemn and public renunciation of the estate for life, in a court of record, it is held to amount to a forfeiture". But where the person who has the next estate of inheritance joins with the tenant for life in levying the fine, it will be no forfeiture, because done with the concurrence 'Co. Lit. 252, a; & lbid. n. (1); 9 Co. 106, b. "Smith v. Abell, 2 Lev. 202; Co. Read. 3. × Garret v. Blizard, 1 Rol. Abr. 855 ' Co. Lit. 251,b; 1 Cru. FINES.. of him who alone could be injured by it; each party therefore in this case is construed to pass his own particular interest, and in that order of time which the law allows, namely, first, the person in remainder, and then the tenant for life2. But this operation of a fine, however, in incurring a forfeiture of an estate for life, must, in every instance which has been put, be understood as said of a fine sur conusance de droit come ceo, &c. or a fine sur done, grant et render, and not of a fine sur conusance de droit tantum, or sur concessit, because these latter fines do not, like the two preceding ones, suppose a prior gift in fee, but operate merely as a grant of the particular estate which the conusor has in him, without divesting the estate in remainder or reversion. They must also be understood to be levied by those who possess or may possess the legal estate in the land, and not by persons who are cestui que trusts only of the land; for as a fine levied by a cestui que trust cannot divest or affect the remainder or reversion, such a fine is construed in equity to pass such interest only as the conusor 'has a lawful power to dispose of”. And it is said by Coke, that a fine levied by a copyholder will be an absolute forfeiture of his estate, and his estate being absolutely gone, and not voidable only, no assent or act of the lord can operate as a waiver of the forfeiture". VIII. THE MEANS BY WHICH A FINE MAY BE AVOIDED. WITH respect to this head of inquiry, it is to be observed, that at the common law there were four modes of |