Clerke v Pywell et Al
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 441
COURT OF KING'S BENCH
[319] 53. clbrke versus pywell & al. S. C. 1 Vent. 42. 1 Mod. 10. 2 Keb. 555. A delivery of a declaration in ejectment does not amount to an entry to avoid a fine, although the defendant confesses lease, entry, and ouster. S. P. 2 Str. 1086. 3 Burr. 1897. Doug. 485, 3d ed. Adjudged upon a trial at Bar in ejectment, in which the Lord Rockingham was concerned, on the part of the defendant, that where a fine sur conuzance de droit come ceo, &c. with proclamation was levied by tenant for life, and the lessor of the plaintiff in the ejectment, who had the reversion for life, within five years after the death of the tenant for life who so levied the fine, directed one to deliver a declaration in ejectment to the tenant^in possession, who did so accordingly ; yet it does not amount to an entry to avoid the fine, although it was the declaration which contained the lease upon which the ejectment was brought.(l) (1) It seema to be an established point, that an actual entry is necessary to avoid a fine levied by tenant for life.(a) However, in the case of Doe Lessee of Compere v. Hicks, M. T. 38 Geo. 3, K. B., 7 T. R. 727, it was said by counsel in argument, that doubts had been entertained, whether a fine levied by tenant for life had any operation. But however such doubts may have arisen, there seems to be no foundation for them. For it appears to be fully settled that a fine levied by tenant for life operates to devest and displace the reversion, or remainders, that is, to leave only a right of entry in the reversioner, or remainder-man. Co. Litt. 251 a. b. Hard. 401, 402, Focus v. Salisbury. Therefore, by the express letter of the statute 4 H. 7, c. 24, of Fines, he must enter within the time limited by that statute, in order (a) That is. to say, a fine with proclamations, as appears by the latter part of the note. [By stat. 3 & 4 W. 4, c. 74, fines and recoveries were abolished, and more simple modes of assurance substituted.] It should be observed that such entry was only necessary for the purpose of grounding an ejectment; for the fine might be equally avoided by bringing a real action within five years from the levying of the fine, or from the accruing of the right of the remainder-man, the words of 4 H. 7, c. 24, being, " so that they pursue their title, claim, or interest, by way of action, or lawful entry, within five years ;" and again, " so that they take their action, or pursue their said right and title according to the law within five years." See post, 319. It was sufficient if the action was commenced within five years, although judgment were not obtained within seven years after: but such action must have been prosecuted with effect. Cruise's Dig. 5, 287, tit. xxv. Fine. A bill in equity was no action within the statute, except in cases of fines levied of trust estates. Ibid. 442 CLERKE V. PYWELL 1 WMS. SAUND. 319. to revest the estate, and avoid the fine, which will otherwise operate as a bar. 5 Kep. 123 b. 124 a. Sa/yn's case. 9 Rep. 106 a. Margaret Podger's case. 2 Lev. 52, Whaley v. Tankard. 1 Vent. 241, S. C. Co. Litfc. 332 b. and note(l). The difference is between a fine levied by tenant for years, and tenant for life. When it is levied by the former, without previously acquiring an estate of freehold by a feoffment,(5) it has no manner of operation whatever except between the parties to the fine, and privies, by estoppel; (c) and the reversioner need not make an entry to avoid it, but "paries finis nihil habuerunt" may be pleaded to it. 18 Vin. 413, 414, Smith v. Parkhurst. 1 Salk. 340, note (b). 2 Ves. 481, Earl of Pomfrd v. Lord Windsor. 1 East, 575, Peaceable v. Bead. But Lord Hale observes that it is otherwise when tenant for life levies a fine ; for he has a freehold, (and so it cannot be said that he has nihil,) and the fine displaces the remainders, and therefore an entry is requisite within five years after the death of tenant for life. Hard. 401, 402. And upon the ground of the operation of a fine by tenant for life to devest and displace the reversion or remainder, expectant on the estate for life, it has been holden, that a devise of a remainder in fee, after a fine levied by tenant for life, and before an actual entry by the remainder-man is made to avoid the fine, followed up by an ejectment aud proceedings thereon pursuant to the statute 4 Ann. c. 16, s. 16, is not good, because it is a disposing only of a right of entry, which the rules of the law will not allow to be assigned, though it will descend. 8 East, 552, Goodright v. Forester. But a writ of error on this judgment is now depending in the Exchequer Chamber.(d) (b) When termors for years wished to obtain the freehold and inheritance, the practice was to assign the term to an indifferent person, and then a feoffment with livery of seisin was made and a fine levied. The term was assigned to attend the inheritance as acquired by the feoffment and fine, and the object was to protect against forfeiture. But it is said that the Court of K. B. in H. T. 1817, treated a term under the above circumstances as forfeited. 2 Preston's Conveyancing, p. xxxii. The principles that ought to lead to such a conclusion are stated by Mr. Preston to be, " 1. That it was a fraud on the part of the terraor, to attempt to gain the freehold : 2dly, that the admission by the assignee of a title in the feoffee to the reversion, was an attornment to a stranger; and by the rules of the common law, attornment by a termor to a stranger is an abandonment of the tenancy, a destruction of the privity between the termor and the reversioner, and a forfeiture of the term." Ibid. [The feoffment could be of no avail to destroy the term, unless made with the assent of him to whom it had been previously assigned. 3 B. & C. 388, Doe v, Lf/nes. 5 D. & R. 160, S. C. And such assent would, it should seem, have operated as a forfeiture of the term. Thus it appears that this practice was attended with insuperable difficulties. See 11 A. & E. 842, Doe v. Pett. 4 P. & D. 278, S. C. Post, 319 note (/).] (e) In consequence of the stat. 32 H. 8, c. 36, s. 1., it was determined that by the word privies in the stat. 4 H. 7, c. 24, were meant those persons who were not only privies in blood to the persons who levied the fine, but also privies in estate and title to the land whereof the fine was levied: that is, those who must necessarily convey their descent through the cognisor, before they could make out their title to the estate; which comprehended the issue in tail. Cruise's Dig. vol. v. p. 183. (d) In the Exchequer Chamber, it appeared that the devisee had not made his entry within the time in which the devisor must have made it, had he been living: the point therefore as to the validity of a devise of a right of entry was not determined; for admitting even that a right of entry might be devised, it was clear that the right had not been pursued in proper time; and the judgment was affirmed on the latter ground. 1 Taunt. 578. [However, subsequent decisions must be regarded as having established, in accordance with the decision of Goodright v. Forester in K. B., that a right of entry was not devisable. 11 A. & E. 1020. 3 Nev. 6 P. 552. 8 Ves. 256, 282, Att.-Gen. v. Vigor, by Lord Eldon. But in order to bar the power of devising a right of entry, there must have been an actual disseisin of the devisor, or devesting of the freehold; a mere adverse possession would not suffice. 2 D. & R. 38, Doe v. Hull. 11 A. & E. 1008, Cully v. Doe. 3 P. & D. 539. And now by stat. 1 Vic. c. 26, (which does not however extend to any will made 1 WMS. SAUKD. 319. MICH. 21 CAR. II. REGIS 443 If this decision be right, it will probably shake the titles to a great many estates, and be attended with the greatest mischief hereafter, and therefore calls for the interposition of the Legislature to prevent these inconveniences. From the relation which every fine has to the preceding term, it may happen that a devise of a reversion, which is a valid one at the time of making the devise, may be rendered of no validity by a fine levied after the will, and perhaps after the death of the devisor. In a word, no person can safely dispose of a reversion in fee expectatit on an estate for life by will or deed. As if a man seised in fee of a remainder expectant on an estate for life devises it, or grants it by deed on the first of August, for instance, and dies; and on the first of November following the tenant for life levies a fine with proclamations of his estate; this fine has relation to the preceding term, and is considered as a fine of that term; and therefore, by a fiction of law against the truth of the fact, it will be construed to have displaced the remainder in fee, and left only a right of entry in the devisor. And though he had no reason to enter in his life time, because no fine had then been levied, yet, because he did not enter to revest the estate so supposed to have been devested, the devise or grant is become invalid and of no effect. A fine levied by tenant for life operates as a forfeiture of his estate, because it is an attempt to convey a greater estate than he can lawfully make. Co. Litt. 251 b. 2 Lev. 202, Smithe v. Abell. So that the person next in remainder or reversion may enter upon the tenant for life at any time within five years next after the fine is levied. And if he neglects to do so, he may enter at any time within five years after the death of tenant for life. For the reversioner, or remainder-man, has in such case two titles, one by the forfeiture, and the other by the determination of the estate for life. And the latter title is held to be a new right which first accrues after the death of tenant for life, and so within the second saving of the statute of 4 H. 7, c. 24, Dyer, 3 b. in the margin. Cro. Eliz. 220, Smy v. June, 4th matter. Ibid. 254, Laimd v. Tucker. Moor, 71, pi. 192. 2 Lev...
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