Gibson Against Mutess
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1650 |
| Date | 01 January 1650 |
| Court | Court of the King's Bench |
English Reports Citation: 74 E.R. 913
King's Bench Division
made a difference where the fine is defeated by entry, by reason of the estate-tail, and where it is defeated by entry by reason of another estate-tail, as in 40 Eliz. Tenant in tail discontinues, and disseiseth the discontinuee, and levies a fine to a stranger, and retakes an estate in fee, before the proclamations passe, the discontinues enters, and then the tenant in tail dies seised, and adjudged that the issue is not remitted, for the statute 32 H. 8. sales, that a tine levied of lands any way intailed by the party that levies the fine shall bind him, and so it is not materiall whether he were seised by force of the estate-tail, or by reason of another estate, or whether he have no estate. [76] And all the justices were of opinion that the estate was barred, for although the discontinue had avoided the fine by the possession, yet the estate-tail remains concluded, and he shall not enter by force of the estate-tail, but by force of the fee which he had by discontinuance. Popham, Avoidance of a fine at this day differs much from avoidance of a flue at the common law, for it appears by the 16 Ed. 3. that if a fine at the common law be defeated by one who hath right, it is defeated against all, but at this clay the law is contrary, for if a man be disseised, and the disseisor die seised his heir within age, and he is disseised by a stranger who levies a fine, and then five years passe, the heire shall avoid this by his nonage, yet the first disseisee is bound for ever, for the infant shall not avoid the fine against all, but only to restore the possession. And therefore it was adjudged in the Lord Sturtons case, 24 Eliz. where lands were given to him and his wife, and the heires of him, and he died, and his issue entred and levied a fine to a stranger, and before the proclamations passed, the mother enters, it was adjudged that the issue was barred, for the wife shall not avoid this but for her own estate : and so if a stranger enters to the use of him who hath right, this shall not avoid the fine. Feltner did agree to this, and said that it had been so adjudged ; hut all the justices agreed, that the estate-taile being barred, the entry shall go to the benefit of him who hath...
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