guished from a fine to operate by way of non-claim. Suppose a mortgage in fee, and then the mortgagor makes a feoffment and levies a fine to a stranger to the use of the mortgagee, without his concurrence, would the plea of partes nihil avail? On the one hand it may be said, the feoffment did not devest, and was fraudulent; on the other hand, that sometimes a mortgagor aware of a defect in his title, is anxious to levy a fine to operate by non-claim without disclosing the defect to the person who has a mortgage in fee of the property. Under these circumstances, he should levy a fine to the mortgagee, and declare that the uses shall operate to confirm the mortgage. By levying the fine to the mortgagee, though ignorant of the transaction, the fine will be kept free from the objection, that partes finis nihil, &c. &c. It is allowed in equity, that a fine by one equitable owner, with non-claim, may be pleaded as a bar in equity to the right of another equitable owner (j): and that a fine, levied by a person claiming an equity of redemption in fee, may be a bar to another person who has a right to that equity (k). It is observed by Mr. Cruise (/) that a fine (j ) 1 Ch. Ca. 49, 278. (k) 2 Freeman 21. (7) On Fines, 106. levied before entry or receipt of rent, will be void on the same principle,-viz. want of freehold. This observation must be understood with the qualification, that the freehold is in some other person. A fine by a person who has a seisin, in point of fact, as by actual possession; or in law, as an heir on the death of his ancestor, and before any abatement by a stranger (m); or by construction of law, as a person who is intitled to the reversion or remainder expectant on an estate in the possession of his tenant, or of a person connected with him in privity of estate[ 264 ] may levy a fine with effect. In all these instances the freehold is in the person levying the fine, and the plea of partes finis nihil, &c. will be irrelevant. In Lord Townsend v. Ash (n), the persons who insisted on the efficacy of the fine, were persons who had a defeasible title, under an estate gained by adverse possession. They had levied a fine, but having levied the fine before they had any seisin, in fact, or in law, the fine did not avail them. And a fine levied under a possession obtained by fraud, though good at law, has in a court of equity been restrained from accomplishing its object (0). (m) Hemsley v. Price, Cro. Eliz. 639. (n) 3 Atk. 336. (0) Cartwright v. Pulteny, 2 Atk. 380. Baker v. Pritchard, 2 Atk. 387. Tenants in common, coparteners, and jointtenants, have an ownership only in their aliquot parts, and the operation of a fine by them, will be confined to their respective shares. Though joint tenants are seised per my et per tout, a fine levied by a jointtenant of the intirety, will be good only for a moiety. It will sever the joint-tenancy (p). These observations apply to the tenants of this description only while the jointtenancy, &c. continues. When one jointtenant, tenant in common, or coparcener disseises his companion, and by that means [265 ]acquires a sole seisin (9), the fine will operate to the extent of the share acquired by disseisin, as well as the original share. Whether there has been a disseisin, is, frequently, a question of fact, and is to be collected from circumstances. Lord Mansfield's observations in Doe v. Prosser (r), on this point, are deserving of particular attention. So are those of Lord Kenyon, in Peaceable v. Read and others, 1 East, 568. And it is concluded, that a fine, levied to operate by non-claim, may run as against one joint-tenant, tenant in common, or coparcener, who is free from disabilities, (p) 1 Cruise, 104. 6 Mod. 45. (q) Fairclaim v. Shackleton, 5 Burr. 2604. Doe v. Prosser, Cowp. 217. 1 Inst. 243, b. 373, b. 374 a. Ford v. Lord Grey, 6 Mod. 44. (r) Cowp. 217. although on account of disabilities it cannot run against another joint-tenant, tenant in common, or coparcener (s). The point is decided on the statute of limitations, of 21 Ja. 1 ; and as all the statutes of limitations are made in pari materia, the decision on one of those statutes seems equally applicable to the others of them. 2. To whom a Fine may be levied. All persons who may be grantees in a deed may be conusees in a fine. The king may be a conusee (t). So may an infunt, a married woman, &c. And when a married woman is merely a conusee, it is not necessary that she should be solely examined apart from her husband, for she cannot be prejudiced. But when there is a fine to a married woman, and the render is from her, she ought to be solely examined, since the render inay be a prejudice to her (u). When a wife is merely a grantee in a fine, the fine may be levied to her alone: but her husband during the coverture, and on [256] his death, the wife herself, may avoid the fine by disagreeing to it; somay her heir (s) Row V. Rowlston, 2 Taunt. 441. Supra, 237. (4) Densh. 12. 7 Co. 32. VOL. I. U (u) 2 Inst. 515. 2 Roll. Abr. 17. (M) pl. 9. after her death without having agreed to the fine. When the wife is to render the lands, it is apprehended her husband ought to be a grantor jointly with her in the render. So a person attainted may be a conusee in a fine (v). So may a corporation sole or aggregate (w). 3. In what Courts a Fine may be levied. The fine must be levied in a court having jurisdiction over the lands. A fine levied in the court of Common Pleas at Westminster, of lands in a county palatine, is coram non judice, and void (x). So is such fine when levied of lands in Wales, &c. On the other hand, a fine levied in the court of Common Pleas of lands in ancient demesne, is not void. But the lord will have a right to reverse the fine by a writ of disceit, to restore the lands to his jurisdiction (y). It is said that the lands are not within the jurisdiction of the superior courts (z). That position is at least questionable. If the lands are not within the jurisdiction, [267] how can the fine remain in force between (v) West. Symb. 815. (y) Supra, 248. |