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right of the said Thomas (or other Christian name PUBCHASES of the purchaser) (1), as those which the said
Husband and Thomas hath (2) of the gift of the said John and Wife by Fine Mary. And those they have remised and quit claimed from them the said John and Mary, and the heirs of the said Mary (3) to the aforesaid Thomas and his heirs (4) for ever. And
moiety, &c. with the appurtenances, and the advowson, and Severa pur tithes aforesaid.”
(1) If there be two or more purchasers, say,
“ To be the right of the said Thomas, (i. e. either but not both of the cognizees) as those which the said Thomas and James have of the gift,” &c. See post, n. (3). (2) If two or more vendors, say,
Several vendors. “ As those which the said John and Richard have of the gift," &c. (3) If husband and wife of the husband's lands, say, Husband's es“ And the heirs of the said (John).” If other persons be the vendors, say,
Several vendors. “ From them the said John and Richard, and the heirs of the said John or Richard,"
Singly, and not to the heirs of both of them; for the fee, it is said, must be supposed to be in one of them only; see the next note.
(4) If the fine be levied to two or more purchasers, say, Several pur
“ To the aforesaid Thomas and James, and the heirs of me the said Thomas,"
And not to their heirs; “ for (per Coke) the fee must determine in some one person in certain, and the conusance to them and the heirs of one of them, come ceo, &c. is consistent with the estate they had before, for if both had right, one had right, and the joint estate in fee is preserved to the parties by their preceding estate and agreement, against the express limitation
PURCHASES. MOREOVER the said John and Mary have granted Husband and
for themselves and the heirs of the said Mary (1), Wife by Fine. that they will warrant to the aforesaid Thomas and
his heirs (2), the aforesaid tenements, with the appurtenances, against them the said John and Mary, and the heirs of the said Mary (3) for ever. AND
of the fine, 2 Co.74 b. and vid. Shep. Touch. c. 15, s. 5. West. 5 Co. 58. 2 Mod. 49. In gavelkind lands, however, this form of limitation is allowed, (see Rob. Gavelk. 192), and there appears to be no legal principle or reason why the same limitation should not be admitted in respect of estates at the common law, and see 2 Mod. 49. 1 Prest. Conv. 287. 2 ibid. 90. i Ca. Op.
437. Several vendors. (1) If there be several vendors, say,
“ For themselves and the heirs of the said John, or any
other of the vendors.” Several vendors. (2) If there are several vendors, repeat this warranty for each
of them and his heirs, and if each vendor warrant only a particular portion of the lands, &c. say,
“ And moreover the said (one of the vendors) hath granted for himself and his heirs, that he will warrant two messuages, &c. &c. with the appurtenances, parcel of the
aforesaid messuages, &c. in A, and so for the rest.” Several pur
If the fine be to two or more purchasers, say,
“ To the aforesaid Thomas and John, and the heirs of the said Thomas.” See ante, p. 49. n. (4).
“ Them the said (John) and (Mary) and the heirs of the said John, &c.; or them the said John and Richard, or the heirs of the said John.”
Or this warranty may, if there should be occasion, be made to extend to the father, grandfather, or other ancestor of the vendor, as,
“ Against the heirs of the said A. the father of the said John, and against the heirs of B. the grandfather of the
for this recognition, remise, quit claim, warranty, PURCHASES. fine, and agreement, the said Thomas hath given to the said John £.. sterling (1).
Wife by Fine. Taken, &c.
said John, and all others claiming by or from the said A. and B. or either of them.”
If the vendors agree to give a general warranty, say “ against all men," instead of “ against the said John and his heirs."
(1) As a fine operates by transmutation of possession, no Consideration. consideration is necessary to give it effect; but like other common law conveyances, it will, if levied without a consideration, (and no uses are declared of it) enure back to the conusor himself, as of his preceding estate, Armstrong v. Wolsey, 2 Wils. 19; hence a consideration is usually inserted, although certainly not necessary where it is accompanied, as in the present case, by a deed declaring the use or purpose for which it is levied.
See further as to the levying of a fine by husband and wife, ante, No. XXXI. p. 14.
For the form of other species of fines, see Wilde's Sup. voc. Other fines. Fine, and notes there.
Husband and Wife by Fine.
II. Deed declaring the Uses (1) of the preceding
Fine to a Purchaser.
This IndENTURE, made the day of in the year of the reign, &c. and in the year of our Lord
BETWEEN (the vendor) of, &c. and Mary his wife of the one part, and (the purchaser ) of, &c. of the other part. (2) WHEREAS the said (vendor) and Mary his wife have con
Recital of contract.
Fine may operate as a conveyance.
Declaration of uses to bc by deed.
(1) A fine will operate as a conveyance as well without as with a declaration of uses, if a sufficient and bona fide consideration be paid, but if no consideration be paid, it will, unless otherwise declared, enure, as has been before observed, to the use of the cognizor; to prevent any question arising, therefore, as to whether a sufficient consideration has passed between the parties or not, a fine is universally accompanied by a deed to lead or declare the use or purpose for which it was levied.
This declaration, when it respects a fine already levied, must be, by 4 and 5 Ann. c. 16. sec. 15, by deed (and it seems proper that the deed should be an indenture, see Downman's case, 9 Co. 7 b.), but if it respects a fine to be afterwards levied, the uses may be directed by any writing for that purpose, and vide Sug. Ven. and Pur. 455, n. (1). 2 Fonb. Equity, 41, n. (c), and vide also Bushel v. Burland, 11 Moore 197. It has, however, been considered prudent to declare the uses by indenture.
Where the deed is to lead the uses of the fine, the day must necessarily precede the fine, but it may be on the day of the acknowledgment. If the deed be to declare the uses, it must of course be dated subsequently.
(2) If the uses of the fine be intended to be declared for preventing a title to dower arising in the wife of the purchaser, make a trustee for that purpose a party with the purchaser, 'as ante, No. XXXI. p. 2, n. (1).
Uses to bar dower.
. tracted with the said (purchaser) for the sale PURCHASES. to him of the lands and hereditaments hereinafter described, being the lands and hereditaments of Wife by Fine. the said Mary the wife of the said (husband) (1) at the sum of £
. And it has been agreed that the same shall be conveyed to him and his heirs, by such fine and declaration of the uses thereof, as hereinafter is expressed. (2) And whereas in pursuance of the said contract, the said (vendor) and Mary his wife as of term now last past (3), have in due form of law
(1) Where the estate of which the fine is levied is the husband's, it is very proper to state it to be so; but this is not so material when it is the wife's estate, as when a fine is levied by a married woman the presumption of law is that it is hers.
(2) A deed to declare the uses of fines should state, hy way Intent of fine to of recital, the intent for which it was levied, that it may be seen be stated. it was competent to effect the purposes in view.
(3) A writ for the foundation of a fine to be levied in the fine as of precourts of Westminster, may be sued out in a vacation and ceding Term. made returnable on a preceding term ; hence it is usual, in order to guard against the death of either of the parties before the return of the writ (which would render the subsequent proceedings voidable for error), Wright v. Mayor of Wickham, Cro. Eliz. 418. Clements v. Langhorne, 2 Ld. Raym. 872, to acknowledge the fine and sue out a writ of covenant as of the preceding term ; but this cannot be done where the fine is levied in a court of peculiar jurisdiction, as in those of Wales and the counties palatine, where the writ of covenant must, by the rules of those courts, be returnable as of the next session, &c.
The modern practice is to have separate fines for lands lying in several counties, but this is not essential to the validity of the fine.
If there is a variance between the fine and the deed declaring the uses, as if the fine be leried of a different term to that mentioned in the deed; it is open to averment that it is not the same