A PRACTICAL TREATISE self by any of his ancestors. And a trust estate, or an equity of redemption, is within the statute. (n) But it does not extend to lands which were originally the property of the wife, or which are derived from any of her ancestors; (0) nor to a voluntary gift by a stranger. (p) Neither does the statute apply where lands are limited by a husband or any of his ancestors, to the wife in tail general, without any limitation to the issue or heirs of the husband, because its object was to prevent wives from prejudicing the issue or heirs of their former husbands. (q) For the same reason, a jointure limited to a woman in fee is not within the statute. (r) By stat. 34 and 35 Hen. VIII. c. 20. no recovery had against tenant in tail, of the king's gift by way of reward for services, whereof the remainder or reversion is in the king, shall bar such estate tail or the remainder or reversion of the crown. But unless the grant appear to have been made as a reward for services, no estate tail granted by the crown will come within the protection of this statute. (s) By the stat. 21 Hen. VIII. c. 15. s. 4. no manner of statute staple, statute merchant, or execution by elegit, shall be avoided by any feigned recovery. It may be observed that a recovery is in some cases preferable to a fine, although a fine might bar the estate; inasmuch as a fine likewise has the effect of letting in the incumbrances of the ancestors, as well as those of the cognizor; whereas a recovery only lets in the incumbrances of the tenant in tail himself. (1) But even this may be avoided where the tenant for life joins with the tenant in tail in suffering the recovery, either by a conditional surrender from, the tenant for life of his estate; (u) or by inserting in the recovery deed a proviso making void the conveyance of the tenant for life, upon non-payment of a certain sum of money within a given time, previous to which the recovery is suffered; and then the money not being paid at the expiration of the time limited, the tenant for life becomes again seised of his former life estate, and so prevents the recovery from letting in the incumbrances of the tenant in tail. (~) (t) See Beck d. Hawkins v. Welch, 1 Wils. Rep. 276. (u) See Appendix X. for such a surrender. (v) Hargrave and B.'s Co. Litt. Book III. n. 94. ye CHAPTER III. Of the parties to fines and recoveries. OF THE PARTIES TO FINES AND RECOVERIES; OF FINES and recoveries being considered as common assurances or conveyances of real property, all persons whom the law enables by other methods to dispose of their property, and who are of full age and competent understanding, have in general power to pass their estates by these assurances. So that any person, male or female, body sole or corporate, that is capable of granting by deed, may levy a fine; and any person capable of taking by grant, or who may be a grantee by deed, may take by a fine. And any person may be a demandant, tenant, or vouchee, in a recovery, who may be cognizor or cognizee in a fine. (w) An infant trustee, (x) may under an order of the Court of Chancery (w) Touch. c. 2, 3. (a) Hargrave and B.'s Co. Litt. Book III. n. 186. or of the Court of Exchequer, on a petition for the purpose, (y) levy a fine, (≈) or suffer a recovery. (a) As to the joining of different parties in the same fine, the general rule is, that where several parcels of property together, exceed two hundred pounds in value, the parties cannot join and include them in one fine. (b) But where the value of the parcels does not exceed two hundred pounds, several parties are allowed to join in one fine; and any number of persons having separate interests in one tenement, of whatsoever value, may pass their interests to any number of purchasers by one fine. (c) In this joint fine, as it is called, each vendor warrants for himself and his heirs his separate part of the lands; (d) but previous to the cursitor's issuing the writ of covenant for the joint fine, he must have an affidavit of the value; and when the acknowledgments are taken by dedimus, the value may be mentioned in the affidavit of the captions. Persons outlawed or waived in personal actions may alien by fine; for their es (y) By the 7 Anne, c. 5. Barnes's notes 217. and Others, 5 Taunt. 265. (c) Lindo v. 5 Taunt. 305. (a) Ex parte Johnson, 3 (d) See Append. LXX. for Atk. case 208. (b) Appleyard v. Brown the concord of such a fine. tates still remain in them, though they have forfeited the rents and profits. (e) But no person can levy a fine of lands that will affect strangers, unless he has an estate of freehold, either by right or by wrong, in such lands. A fine by a tenant for years, or who holds by statute merchant, statute staple, or writ of elegit, or by a copyholder, will have no effect whatever. (f) If an alien levies a fine, or suffers a recovery, it will not conclude the king after office found. (g) The Court will not interfere to authenticate a fine levied by a married woman in the absence of her husband, though he has become a bankrupt and omitted to surrender himself, and is gone beyond seas. (h) An infant is incapable of being cognizor in a fine, or vouchee in a recovery but if a fine be levied, or a recovery suffered, by an infant, and is not reversed during his minority, it must for ever after stand good; because the fact of infancy can only be tried by an inspection of the infant's person in open Court (i) Idiots, lunatics, and generally all persons of nonsane memory, are incapable of levying fines or suffering recoveries. |