On this construction of the statutes, a fine levied by one ancestor alone (k), when the gift in tail is to both parents, will be a bar to the issue, so as to extinguish the intail. At the same time, that the heirs are barred under these circumstances, the fine will not affect the interest of the other ancestor, further than to take from the estatetail its descendible qualities. The other ancestor will have a base or determinable fee, instead of an estate-tail. The other collateral qualities, as the right of suffering a common recovery, will remain; and the estate of the other ancestor may descend to the issue as his general heir, though not as heir to the intail. The sole effect of the fine is to preclude the issue from claiming as issue in tail. But a fine by a father when the gift is to the mother, and her heirs of [308]her body begotten by the father, will not bar the intail. He is merely a parent, not an ancestor. The lands are not intailed on him. He is named merely to describe those particular heirs of the body of his wife, who are within the scope of the intail. So a gift to a man and his heirs of his body, will enable the son, after the death of the father, to bar the intail, so far as to exclude his brothers and sisters, and their (k) Beaumont's case, 9 Co. 138. Baker v. Willis, Cro. . Car. 476. issue, as well as his own issue (7); but unless the intail had descended on him or his issue, his brothers or other collaterals would not be barred by his fine if levied in the lifetime of the donee (m). So when a gift is made to a man and the heirs males of his body, with remainder to him and the heirs females of his body; a fine levied by him will bar both estates tail. He is the ancestor to both intails. But when a gift is made to a man, and the heirs males of his body, with remainder to him and the heirs females of his body, and he dies, leaving a son and a daughter; a fine levied by the son, though it will bind his own issue, will not bind his sister or her issue; for each of the children has a distinct estate-tail, and the daughter, and her heirs, are to take the estate in tail female, independently of the son or of his issue (n). So if limitations are made in favor of the first and other sons, successively, in tail, a fine levied by the elder son or his issue, [309] will not by force of the statutes of proclamations bar the younger sons or their issue. Each son has a distinct intail; and the younger sons and their issue do not claim under the same intail which gave an estatetail to the person by whom the fine is levied, though they claim under the same will or settlement. Also, though on a different ground, a fine by a younger brother or his issue, will not bar the elder brother or his issue claiming under the same intail; nor will the fine of the elder brother or his issue bar the younger brother or his issue, unless the elder brother or his issue becomes heir to the intail, either before or after the fine is levied (o). So a fine levied by a sister or an uncle, who is pro tempore, the heir in tail, will not bar a more immediate heir, who afterwards comes into existence (p). From these points, it will be collected, that a fine may be levied with effect so as to bar the intail, when a recovery could not be suffered to bar it effectually. Fourthly, As a Bar by Non-claim. That a fine may operate as a bar by nonclaim it must be duly proclaimed. It is essential also that one of the parties should have an estate of freehold, that the plea of partes finis nihil habuerunt, may not be rele[310]vant; with the exeception, that an equitable freehold in one of the parties, will, it should seem, be sufficient to support the fine against (0) Hob. 258, 333. (p) Hob. 333. Shep. Touch. persons claiming under equitable remainders, &c. Such estate of freehold may be either in possession, remainder, or rever sion. In Salvin v. Clerk (q) the conusor in the fine had an estate in reversion, expectant on his own lease for life made by discontinuance, and the fine operated by nonclaim to bar the reversion in fee under the rightful seisin. There are other cases of the like description, in which also the like decision was pronounced. In all these cases the estates to be barred were devested before the fine was levied; as when a disseisor made a lease for life and afterwards levied a fine (r); or a discontinuor, by means of a particular estate, had gained a new reversion by wrong. Anne Twist's case (s) involves the same considerations. That a fine may operate by nonclaim, there must also be an adverse possession, understood with the qualifications which have been noticed in a former part of this chapter (1). 10. On what Fines Uses may be declared. On every fine which transfers an estate, even on a fine sur grant et render, uses may (q) Cro. Car. 156. (s) Shep. Toach. 27. be declared (z). By the render a common law seisin is transferred, and a declaration of uses will be valid. It seldom happens, that a fine sur grant et render is levied to uses. When uses are to be declared, all that can be accomplished by the render in the fine, or by the render united with the declaration of uses, may be accomplished by the declaration of the uses alone. On this point it is observable, that the question has been raised, whether uses may be declared on the estate rendered by a fine, and that question has been decided in favor of the declaration of uses. A case in Clayton's Reports, which may seem to the contrary, is reconciled by considering the interval which elapsed as affording the conclusion that the grantee in the render took to his own use. [311] That a common law seisin passes, and that there is a declaration of uses, are the two essential circumstances to call the statute of uses into operation. When no estate passes by the fine: when its operation, instead of passing an estate is to release a title, or extinguish a right; then no uses are admissible. In short, there is not any estate to supply a seisin to these uses. (u) Moor. 45. Poph. 105. |