TOOK บ. Statute of Uses-Devise of Uses. Johanna his wife in tail ; that Lady Bradbury died, and GLASCOCK. the trustees were seised to the use of the said Guy Crafford and his wife Johanna in tail; and then came the Statute of Uses, and by virtue of the said Act (6) the cestui que use became seised in tail ; that Guy Crafford and his wife died seised, &c., and the estate descended to Arthur Crafford in tail ; that Arthur died, and the estate descended to Mary and Winifred Crafford as co-heirs -; that Mary died without issue, and Winifred became sole seised ; that George Gibbens married Winifred, and became seised in right of the said Winifred of the estate tail -; that Winifred died and George became tenant by the curtesy, the reversion belonging to their son Crafford Gibbens in tail. The plea then stated the demise as alleged in the declaration from Crafford Gibbens to John Letton, and the bargain and sale as alleged in the declaration by Crafford Gibbens to Gilbert Kinder and his heirs, by virtue of which bargain and sale the said Gilbert Kinder was seised of the tenements in question for the term of the life of the said Fine-Efficacy of. Crafford Gibbens; and the plea further stated the assignment from Letton to defendant, as in the declaration alleged, and that after the death of George Gibbens and Crafford Gibbens, the tenements in question descended to Susanna Gibbens, as sole daughter and heir of his body, and that she entered upon the defendant and ejected him. To this plea the plaintiff replied, that after the said indenture of bargain and sale to Gilbert Kinder, and before Susanna entered upon the possession of the defendant, Crafford Gibbens and Ann his wife, levied a fine with proclamations (7) to one John Leach, and that by that fine the premises remained to Margaret and her heirs. To this replication the defendant rejoined that Gilbert Kinder, after the will and before the fine, died. To this there was a general demurrer and joinder. The case, as disclosed in these pleadings, was in effect thisCrafford Gibbens was seised in tail of the reversion of a manor, expectant on the death of George Gibbens, who was tenant thereof by the curtesy. And being so seised, the said Crafford by indenture demised certain tenements, parcel of the said manor to one John Letton, for a term to commence on the death of George Gibbens, at the yearly rent of 107., which term (7) A fine with proclamations, pursuant to the statutes 4 H. 7, c. 24; 32 H. 8, c. 36, is a bar to the issue in tail; though a fine at common law is not any; but, when levied by tenant in tail in possession, operates as a discontinuance of the estate tail. And it is necessary, in pleading, to distinguish whether it was a fine with proclamations, or a fine at (e) [Fines were abolished, and more simple modes of assurance substituted, by stat. 3 & 4 W. 4, c. 74. See post, notes to Clerke v. Pywell. And now, by stat. 11 & 12 Vict. c. 70, s. 1, all fines common law (e). Therefore, when tenant in tail levies a fine with proclamations, he ought to allege expressly that it was a fine with proclamations; otherwise it will be intended to be a fine only at common law. Plowd. 361 b. Stowel v. Zouch. Moor, 220. Owen's case. Palm. 224. Darcy v. Jackson. heretofore levied in the Court of Common Pleas shall be conclusively deemed to have been levied with proclamations, and shall have the force and effect of fines with proclamations.] v. Bargain and Sale by Tenant in Tail. Letton assigned to the defendant. Afterwards Crafford, by GLASCOCK. bargain and sale, enrolled, bargained and sold the reversion of the demised premises to George Kinder and his heirs. And afterwards Kinder made his will in writing, and devised the tenements so bargained and sold to him to the plaintiff and her heirs, and died. Afterwards Crafford Gibbens levied a fine with proclamations of the whole manor to a stranger, and afterwards died, and then the tenant by the curtesy died. And the defendant, by virtue of the said demise and assignment, entered. And the plaintiff, afterwards supposing she had the reversion, brought an action of debt against the defendant for the rent reserved upon the lease. And after several arguments, the court gave judgment for the defendant (8). (8) This case is denied by Lord Holt, in Machil v. Clark, 2 Salk. 619, 620. S. C. 7 Mod. 18. Com. Rep. 119. 2 Ld. Raym. 778. Holt, 615. 11 Mod. 19, where it is held, agreeable to what had been before determined in 3 Rep. 84 b. Case of Fines. 10 Rep. 96 a. Seymor's case, and to what is said in Plowd. 557. Walsingham's case, and by Lord Hobart, in Sheffield v. Ratcliff, Hob. 338, 339, and in Cro. Car. 429. Stone v. Newman, that if tenant in tail by bargain and sale, lease and release, covenant to stand seised, or any other innocent conveyance, as it is called, operating by way of grant, conveys to another and his heirs, the grantee has a base fee-simple determinable on the death of tenant in tail by the entry of the issue in tail; and until it be so deter mined, such estate hath all the incidents of a fee-simple: The wife of the grantee shall be endowed; he is not punishable for waste; his alienation by feoffment or other conveyance is no forfeiture: and that Littleton is not to be understood literally, but only that the grantee has not any sure and indefeasible estate for a longer time than during the life of tenant in tail. And subsequent cases are agreeable to the case of Machil v. Clark. 1 Atk. 8. Stapleton v. Stapleton. 3 Burr. 1703. Goodright v. Mead. 2 Bac. Abr. 125. See Mr. Butler's note to Co. Litt. 331 a, n. (1), and 7 T. R. 276. Doe v. Rivers (f). Therefore, in the principal case, the devise by the bargainee seems to have been a good devise under the statute 34 & 35 H. 8, c. 5, of wills, and consequently the fine levied (f) [10 M. & W. 608. Doe v. Woodroffe. 2 H. of L. 811, 827.] Тоок V. Voidable Estate created by Tenant in Tail-Stat. 3 & 4 W. 4, c. 74. And in this case these two points were resolved:-1, that by the bargain and sale by Crafford Gibbens, who was tenant in tail of the reversion, nothing passed to Kinder the bargainee, but an estate descendible for the life of the said Crafford, according to Co. Lit. 329 b., sect. 606, and that it cannot be GLASCOCK. by the tenant in tail after the death of the bargainee would have corroborated the estate of the devisee. But if tenant in tail covenants to stand seised to the use of himself for life, remainder to J. S. and his heirs, it is void, and the estate tail not altered; for the remainder is not to take effect until after his death, when the title of the issue commences, which is paramount the title of the remainder; and the covenant to stand seised, as to the estate for life, is void, because there is no transmutation of possession; and therefore if he afterwards levies a fine, or suffers a recovery, to the use of a stranger, it shall enure to such use. 1 Ander. 291. Cro. Blytheman's case. S. C. (g) [And now by stat. 3 & 4 W. 4, c. 74, (Act for Abolition of Fines and Recoveries) s. 38, when a tenant in tail has created a voidable estate in favour of a purchaser for valuable consideration, and shall afterwards under the Act, by any assurance (other than a lease not requiring enrolment), But if tenant in tail by lease and release, or bargain and sale, conveys to another and his heirs to the use of himself for life, with remainders over, and suffers a recovery afterwards to a stranger to other uses, the recovery shall enure to make the base fee indefeasible, and not to the use of the recovery. So, if he afterwards levies a fine to a stranger to other uses, it will make the base fee sure and indefeasible, until his death without issue, if there are any remainders over. 8 T. R. 214. Doe v. Whicelo. If tenant in tail, by bargain and sale, or lease and release, conveys the whole estate away, it seems he cannot afterwards suffer a recovery founded upon another conveyance, because he cannot make a good tenant to the præcipe; but still he may levy a fine (g). make a disposition of the lands, such disposition, whatever its object may be, and whatever the estate intended to be created by it, shall, if made with the consent of the protector, if any, or by the tenant in tail alone, if there be no protector, have the effect of confirming such voidable estate in the Estate pur autre vie-Devise of. devised under the Statute of Wills, 32 H. 8, and 34 & 35 GLASCOCK. H. 8, which last statute explains estates of inheritance to mean บ. estates of fee-simple only. Therefore, here the estate bargained and sold to Kinder shall descend to his heir, as special occupant, notwithstanding his will (9); 2ndly, it was resolved that (9) But now by the Statute of Frauds, 29 Car. 2, c. 3, s. 12, estates pur autre vie are devisable by a will in writing, signed by the devisor, or by some other lands thereby disposed of to its full extent as against all persons except those whose rights are saved by the Act; but if there be a protector, and he does not consent, the disposition shall confirm the voidable estate so far as such tenant in tail would then be capable under the Act of confirming the same without such consent : provided that if such disposition shall be made to a purchaser for valuable consideration without express notice of the voidable estate, the latter shall not be confirmed as against him and claimants under him. It was held in 5 B. & Sm. 697. Crocker v. Waine, that the term "disposition" in this section of the statute, is not restricted to the deed barring the entail, enrolled in Chancery under the Act, but comprises it and all other instruments by which the arrangement between the vendor and purchaser is carried out. And it was conceded that a conveyance executed by a tenant in tail to |