"that, that those which were parties to the "Fine, nor any of them, nor no person or

*

therefore, though it purports to convey the whole land, will pass only the Conusor's share. Ford v. Lord Grey, 6 Mod. 44; 1 Salk. 285; see, however, 2 Atk. 631. And the same rule is applicable to Tenants in Common. Reading v. Royston, 2 Salk. 423; Cro. El. 640.

(101.) It is therefore sufficient for establishing the validity of the Fine, if the Conusee had an Estate of Freehold, though the Conusor had nothing. Co. Fi. 22; 1 Burr. 95; Bro. Abr. Fine, 12.

+ (102.) By Stat. 1 Rich. 3, c. 1. persons entitled in equity to the produce of lands of which the legal estate is vested in their Trustees, (of which more hereafter), are enabled to convey the lands themselves without the concurrence of those Trustees. Accordingly it was provided in the present statute that the Fines of such persons should not be void for want of a legal estate vested in them. And in consequence of this provision it became usual for strangers who would take advantage of the Exception saved to them by the statute, to plead that "the parties to "the Fine had nothing in possession nor use." Lord Sandes's Case, Dyer, 215. The Statute of Rich. 3, has been virtually repealed by the Statute of Uses hereafter mentioned, and therefore this form of pleading is now improper. See Bac. Tracts, 304. (103.) But it has been made use of in argument to support an opinion that unless one of the parties has an estate of freehold in possession, the fine is void as to strangers. 2 N. R. 24. And this notion has been carried so far that in one case the Fine come ceo, &c. of a person having a remainder in tail was said to operate only by way of estoppel. Doe v. Harris, 5 M. & S. 326. But it seems clear that such a Fine operates by way of grant; (2 N. R. 32; 3 Co. 90. a.) and the word "possession," in the form of pleading is used in contradistinction to "use" and not to remainder or reversion. That the Fine of one who has a reversion in fee expec

persons to their use, ne to the use of any of them, had nothing in the Lands and Tene"ments comprised in the said Fine at the time "of the said Fine levied. (104.) And it is or

dained, That every Fine which hereafter shall "be levied in any of the King's Courts, of any "Manors, Lands, Tenements, and other posses

sions, after the manner, use and form that "Fines have been levied afore the making of "this Act, be of like force, effect, and autho

rity as Fines so levied be or were afore the making of this Act, this Act or any other Act "in this present Parliament made or to be made "notwithstanding. And every person shall be at liberty to levy any Fine hereafter at his pleasure, whether he will after the form con"tained and ordained in and by this Act, or "after the manner and form aforetime used."

(105.) A Recovery is a conveyance or assurance by means of an Action brought by the intended Grantee either originally against the Grantor, or against another person in such manner as to implicate the Grantor in the proceedings, and so conducted that, for want of a sufficient defence, Judgment is given against the Grantor. (106.) This Action ought properly to be brought in the first instance against the person who has the first estate of Freehold

tant upon an estate for life will bar strangers who do not make their claim within five years, is clear from Co. Litt. 198. a.; and Salvin v. Clerk, Cro. Car. 156. And see Shep. Touch. 13.

(22.)

Doe v Bp. of
Llandaff,

2 N. R. 491.

in the Tenement, whether this estate be immediate or subject to a preceding chattel interest. For such a person is required by Law to be the defendant in all Actions where an estate of Freehold is the thing directly in demand; and it is principally for this reason that the Freehold is never allowed to be in suspense or abeyance, lest the assertion of Right by Action should be suspended too. (107.) However, a Recovery which is defective in this respect will be a good conveyance of the Fee, by way of Estoppel, if other requisite forms are observed; for the defect cannot be alleged by or in favour of the Recoveree*, or those who claim merely as his representatives. (109.) More will be said of this species of Assurance in the Chapter on Estates Tail, to which it is peculiarly appropriated but it may here be observed that as it differs in many respects, in point of effect, from a Fine, so also its formalities are such that it can only be transacted in Term, while the Court is sitting; (110.) whereas the essential part of a Fine being the acknowledgment of the parties, which can be taken at any time by Commissioners, it may be completed in Vacation, and

(108.) The termination ee in other words marks the dative or accusative case; here it denotes the ablative: which is a consequence of the name and nature of the Assurance, in which the person to whom it is made appears to be the active party, and is styled the Recoveror; while the Recovery is said to be suffered by him from whom the estate passes.

181.

(69.)

recorded as of the preceding Term. (111.) A Cru. Rec. 108. Fine cannot be levied by Attorney or deputy; but a Recovery may be suffered by Attorney, whose warrant appears upon the Roll; and if the Recoveree be an Infant, or insane, this warrant (though made with the same solemnity as the acknowledgment of a Fine out of Court) will be void, and will vitiate the Recovery; as would also the death of the Recoveree before the Attorney had executed his authority.(112.) Both Fines and Recoveries are considered as commencing their operation (unless in some special cases) on the first day (called the Essoign Day) of the Term in or of which Cru. Fi. 59; they are recorded; for the compromise is supposed to be made, or the Judgment given, on the same day that the Sheriff is represented to have returned into Court the Writ on which the fictitious Action, or the last proceeding in it, is grounded. (113.) Lands lying in two Counties cannot be included in one Writ, and therefore not in the same Fine or Recovery.

SECT. 2.-Of Alienation under the Statute of

Uses.

(114.) It was said that in the Reign of Henry 8, new modes of conveyance were introduced. Some time before that reign the Court of Chancery had begun to exercise a Jurisdiction over Land, by virtue of its own power, as a Court of Equity, and through the inability of

D

Cru. Rec. 123.

Cra. Fi. 39.

(20.)

Tracts, 307.

the Courts of Law, to compel the conscientious performance of Agreements, and the execution of Trusts; insomuch that the rules of that Court, through that sort of subordinate and almost unperceived legislative authority, which a muchrespected Court of Justice always obtains, had formed themselves into a regular system relating Bacon on Uses, to Equitable Estates. (115.) Thus, if a Feoffment were made "to A. and his heirs, to the use "of B. and his heirs," it was understood that though A. was to be the ostensible proprietor of the land for its defence in a Court of Law, and for conveying a Legal Estate to any person to whom B. might wish to make over the property, yet B. was to be the owner in all other respects, and to have the whole benefit of the land. (116.) In the same manner, if A., being the actual proprietor of land, had made an Agreement with B., that the land should be his, then, provided there appeared a sufficient motive or consideration for such an Agreement, the Court of Chancery would consider A. as holding the land to the use of B., exactly as in the former instance. (117.) The considerations which were thought sufficient for giving obligatory validity to such Agreements were of 2 Sand. Us. 46. two kinds; they consisted either of money (or money's worth,) or of the affection which the 2 Sand. Us. 81. party had for his wife, or any of his relations, or, (which was considered of the same kind) the inducement of his own or his relation's intended marriage. Hence, besides the de

Bao. Tr. 310.