the tenements in question; that he had issue Mary, after married to J. Gwillym, who had issue Thomas, and he had issue Thomas, who had issue the lessor; that T. Andrews conveyed the premises to the use of himself and Eleanor his wife for their lives, remainder to Mary Andrews his daughter, and the heirs of her body by the said J. Gwillym, with other remainders T. Andrews and his wife died, and the said J. Gwillym and his wife entered; that they both died, and T. Gwillym their son entered ;-that the tenements are parcel of the manor of W., which is ancient demesne; that by the custom there, fines founded on writs of right close are levied in the court of the manor; that 29th May, 1646, the said Thomas levied a fine sur concessit to three for their lives, reserving a yearly rent, but not the ancient rent; which fine is said to be levied in placito

oyer.

"ture. If a forfeiture were incurred, the demandants were not "bound to enter; Doe d. Cook v. Danvers, 7 East, 321; Wells v. Prince, 9 Mass. Rep. 508; and if the right to enter for that cause is now barred by the statute of limitations, this does not "affect the right of entry arising afterwards on the death of "tenant for life. If there be two rights of entry, one may be lost "without impairing the other. Wells vs. Prince; Hunt vs. "2 Salk. 422."

་་

Burn,

A deed of a tenant in tail, pursuant to the statute of 1791, c. 60. [Massachusetts, enabling tenants in tail "for a good or valuable consideration, bona fide," to alien the land entailed,] must be made for a good or valuable consideration, in point of fact; it is not sufficient that it merely purports to be so made, if the fact be otherwise. Soule vs. Soule & Al. 5 Mass. Rep. 61.

Devise of land to A. for life, remainder to demandant in fee. The tenants enter under an invalid purchase, and hold the same for more than six years, making improvements on the lands. A. dies, and the demandant thereupon brings his writ of formedon. Held," that the demandant is entitled to recover, subject howe"ver to the provisions of the limitation and settlement act, to the "benefit of which the tenants are clearly entitled. It is no objec"to their claim, that they entered during the continuance of the "estate of the tenant for life, and that the demandant's title "did not accrue until within six years from the commencement of the action. The shifting of the legal title does not affect the "tenants' possession, and as they have had actual possessoin for "more than six years, they are entitled to the benefit of the sta tute." Heath vs. Wells & Al. 5 Picker. Rep. 140. 145.

conventionis; that Thomas Gwillym and his wife, 2d June, 24 Car. I. levied a fine sur conusance de droit comme ceo, &c. with warranty to T. Marret and his heirs, to the use of the said T. Gwillym in fee; that T. Gwillym the Father, 1st Nov. 24 Car. I. by indenture enrolled before a justice of the peace, &c. conveyed the premises to T. Payne, the defendant's ancestor, in fee; that T. Gwillym died 20th June, 1663, the said T.

Gwillym, junior, then being of the age of twenty-one [*12] years, who died, having issue the #lessor; that the survivor of the said three lessees died 17th, Sept. 1693;

that thereupon the defendant entered, and the lessor being of the age of twenty-one years, entered upon them. The jury then found the lease, entry, and ouster; and if, &c. The court were of opinion, that nothing appeared on the record whereby the entry of the lessor was barred, and therefore judgment was given for him.

But a writ of error was brought, and the judgment affirmed by the opinion of all the judges of the King's Bench, who delivered their opinions seriatim, and amongst other points, resolved unanimously

That the plaintiff's lessor is not barred by the statute of 21 Jac. I. of limitations, although twenty years were passed after the right of action (scil. formedon) accrued. For although he was barred of that action after twenty years past, yet he had title of entry only after the discontinuance for three lives was determined; and be shall have twenty years for entry after his title of entry accrued to him, which in this case was by the determination of the lease for three lives, and that was within twenty years before the action brought.

But(a) to reverse this judgment, and the affirmance of it, a writ of error was brought in parliament; and on behalf of the plaintiffs in error it was said, that there were three questions

(a) Brown's Parl. Cas. 67.

in the case; first, whether the first fine levied by the tenant in tail in ancient demesne, worked a discontinuance? for if not, then the plaintiff's title of entry commencing above twenty years before, was barred by the statute of limitations.

*Secondly, whether the discontinuance, if any, [*13] determined with the estate for three lives, granted by

that fine, or still continued, to bar the entry of the issue in tail; either by means of that fine, or the second fine with warranty, or any other conveyance in the cause?

Thirdly, whether, as the plaintiff had lapsed the twenty years given him by the statute to bring his formedon, and so was barred of his right of action, he was not also, for the same reason, barred of his right of entry'

As to the first question, it was argued, that a court of ancient demesne to take a fine, being disabled by stat. 18 Ed. I. which enacts, "that no fine shall be levied without writ original, and this before the justice of the common pleas, or in eyre, and not elsewhere ;" and that the statute being formed in the negative, would prevail against any custom pretended, or even found to support such fine; and, being general, would destroy the power of that court to take a fine to any effect whatsoever. But if such a court could take fines by virtue of a custom, yet, that this particular fine was not levied pursuant to the custom; because it did not appear to be founded on a writ of right close; which writ is in the nature of a commission authorizing the lord to take the fine; if therefore the court had no jurisdiction to take a fine, or if the custom of a inanor was not pursued, the fine was consequently void, and could never work a discontinuThat the reason given by Lord Coke, 1 Inst. 383. why any fine works a discontinuance, is, that it is a feoffment of record; but this fine could not be said to be in the nature of such feoffment, because levied in a court which was not of record; and not being within the reason, ought not to be within the rule, *of other fines of record, which do discontinue

ance.

[*14]

estates; and if, for these reasons, there could be no discontinuance, the consequence was, that the right of entry of the issue in tail commenced immediately upon the death of the tenant in tail, which happened in 1663, above twenty years before the issue entered, and therefore this entry was barred by the statute of limitations.

As to the second question, it was insisted, that the discontinuance, if any, did not determine with the estate for three lives, but still continued to bar the entry of the issue in tail, by the common law; because a fee passed by the first fine to the conusee, by force of the words conusance de droit, which are ever intended of the fee; the words right and fee being synonymous terms, as appears from 1 Inst. 345-6; and right is the proper term of art to carry the fee in the acknowledgment of a fine, and so constantly used; and if the fee passes by that conveyance, or act, which originally causes the discontinuance, that discontinuance must be for the whole fee; and on this account differs from all the cases in Lit. sec. 621. 1, 2. where the first grant passed only an estate for life, and therefore originally made a discontinuance for that life only. But if, in this case, the first fine alone would not work a discontinuance in fee, yet the second fine and warranty would, in order that the warranty might be preserved; and which would be lost and void, if the issue might enter, for then the conusee has no opportunity of making use of it; and for this reason, in Lit. sec. 601. the warranty is held to be a discontinuance, where the grant without the warranty would be none; and the same is also laid down in divers other books, in parallel cases.

[ *15 ]

*And as to the third question, it was contended, that the entry of the lessor of the plaintiff was barred by the statute of limitations; which enacts, that no person shall enter into any lands, but within twenty years after his right or title shall first descend or accrue. In this case, the first right or title that decended, was a right of action, viz. a formedon, which accrued to the issue immediately on the death of the

tenant in tail, which happened above thirty-five years ago; and the issue, having neglected for above twenty years to sue for the estate, was thereby barred not only of his action, but of his entry also. For otherwise a man might enter into lands, when he had noway by law to recover them, having lost that remedy by his own default; which would be absurd and inconvenient, with respect to purchasers, and disturbance of long possessors. And in the case of Saule v. Clarke, (a) it was adjudged, where tenant in tail leased for life, and afterwards granted the reversion by fine, and died without issue, and he in reversion did not bring his formedon in five years, as he might; that he could not enter after the death of lessee for life, though then the discontinuance determines here; because the reversioner had but one right, though several remedies; and having pretermitted the first, was foreclosed of the second by the statute.

[*16]

On the other side it was contended, that the only question in this case was, whether the lessor of the plaintiff might lawfully enter, after the determination of the estate for three lives, granted by the first fine; for it was not pretended, that a fine levied in a court of ancient demesne would bar an estate-tail at this day. That the first fine made a discontinuance of the estate, and took away the entry of the issue in tail, during the lives of the lessee only; but the grant of the reversion by the second fine did not make a discontinuance in fee; and, consequently, when the last life dropt, in September, 1693, the discontinuance was determined, and the right of entry revived; and therefore Richard Gwillym, the issue in tail, might lawfully enter, and was not barred by the statute of limitations, his right not accruing till 1693.

After hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the court of common pleas, and the affirmance thereof in the court of queen's bench, should be affirmed.

(a) Jones, 208. Cro. Car. 156