Lastly. The fine and warranty shall be no bar, because when the fine is *levied, the warranty descends from the son to a feme covert, 1 Rep. Archer’s case 140. Chadley’s case. If a warranty descends from a feme covert, it shall not bar the entry, here the entry is for the life of the tenants, but after their deaths the entry is lawful 44 Ass. Admitting that it shall be a bar by the warranty at common law, the statute of Westminster 2 will help him, because he claims through him who had the reversion and not through him who levied the fine. A brother was tenant in tail to him and the heirs male of his body, made a lease, for life with warranty, and died without heirs, leaving a daughter, and the eldest brother died without issue, the daughter may claim the land under the statute of Westminster 2, notwithstanding the warranty. Litt. Pl. 706. A reversion in fee expectant on an estate tail, is helped by the statute; if tenant in tail makes a feoffment in fee with warranty, and dies without issue, and the warranty descends on the reversioner, it is no bar; for the tenant in tail cannot prejudice the lessee by deed or feoffment, but the remainder is not helped. If a gift in tail be made to the eldest son by the father, and he makes a feoffment in fee with warranty, and dies without issue, and the father dies, this warranty is no bar to the youngest son. As it is a reversion and he claims through him in reversion, and the reversion came from another ancestor, the reversion is not barred, 7 E. 3. 48. 6 E. 3. 5. The statute does not speak of him in remainder. I conclude by saying that there is no discontinuance of the fee, condition, or estoppel; and that if there be any estoppel, it is helped by the statute of Westminster 2: therefore the title of Robert Povise, is the best in this case. Postea, p. 72. 2 Cr. 156 *68 and 525. Jones 208. Bendl. 174. M'William’s case, Hobart 532.
Saul v. Clark, 1 N.C. 64, 1 Mart. 64 (1793)
*Saul vs. Clark and Elizabeth.
Pasch. 1 Car.
Ejectione formæ. It was shewn that one Povise was seized in his demesne, as of fee, and being so seized on the 7th of October 20 Jac. made a lease to the plaintiff, of the lands for which the ejectment is brought, for three years; that he entered and was possessed until the defendant ousted him. The defendant pleaded non culp. and a special verdict was found: That a long time before the supposed trespass and ejectment, John Sydenham was seized in fee of the premises, and gave them to his youngest son Alexander, and the heirs male of his body. That John, the father died, and Alexander being seized &c. on the 10th of November, 5 E. 6. demised the premises to G. Archer and Maud his wife, for their lives, remainder to John, the son, for life, with warranty against all persons. After this Alexander levied a fine to certain persons, to the use of John Taylor and his heirs, by force of which he was seized of the remainder. John Taylor, for a valuable consideration, bargained and sold the land to I. Mallet and his heirs, by force of which he was seized of the reversion. They find that the tenants for life are alive; that Mallet granted the reversion to Napper; on which grant the tenants attorned; and Napper demised the land to one Clark, under whom the defendants claim, for 90 years, by force of which he was possessed of the future interest, and afterwards granted it to Nicholas Clark and Elizabeth, his wife, the present defendants. They further find that Alexander Sydenham had issue Joan (who married Sir Robert Povise) and died without issue male. John Sydenham, (the eldest son) died without issue; that Joan, the daugter of Alexander died; that Robert Povise is her son and heir; they also find the path of all the tenants for life, and that Robert Povise entered and was seized; and being so seized made a lease to the plaintiff, who entered &c. The case is this. John, the father had two sons, John and Alexander; and granted the land to his youngest son and his heirs male of his body, and died. The grantee in tail *65devised the land to three for life. Alexander the grantee in tail, and his wife levied a fine to the use of T. and his heirs with proclaimation and warranty. Alexander had a daughter Joan, who married Povise: and he (Alexander) died without issue male, &c. After the death of the tenants for life, Robert Povise, the son and heir of Joan, entered. It was argued that the plaintiff has no title to the land.
1. The first question is: Whether there be a discontinuance of the fee? for if there is, the entry of the heir of the daughter is not lawful, and *the ejectione firmæ does not lie. In this case, it is thus: A man had issue two sons and gave lands to the youngest and the heirs male of his body and died. The donee made a lease for their lives, not warrantable by 32 H. 8. and granted the reversion by fine with proclamation and warranty, and died, leaving issue a daughter, all the tenants for life being dead. Where then is the discontinuance of the fee? With regard the warranty, it shall not be a discontinuance, except the warranty and the right descend to the same issue, Litt. Pl. 737. If tenant in tail has issue two sisters by different venters, and die; and they enter and are desseized by a stranger, and one of them demises to the disseisor by deed with warranty, and dies without issue; the surviving sister may enter and oust the desseisor, because she is no heir to the warranty; ergo there is no descent. So, here, the right of the reversion goes to John: and the warranty, coming from Alexander to the daughter is no bar of record, to the other.
2. The fine is no discontinuance: for it takes effect by way of grant. If lease for life be made with warranty by the donee in tail, and after the donee grants the reversion by fine with proclamation, the warranty of itself is no discontinuance. But if the daughter had brought her formedon it would be a bar. 28 H. 6. Br. Discontinuance 15. and here there is no discontinuance, for it is not executed during the life of the grantor. Tenant in tail leases for life, levies a fine of the reversion and dies; and afterwards the lessee dies, it is no discontinuance; because it is not executed during the life of the grantor. It is clear that if the tenant in tail leases for life, and after grants the reversion, and dies before the tenant for life, it is no discontinuance: likewise in the case of a fine, Litt. Pl. 18. 21 H. 6. 53. per Paston. Tenant in tail died during the life of the tenant for life, it is no discontinuance, although it be by fine, for it is not executed during the life of the *66grantor; and a fine with proclamation shall not have more effect or discontinuance than a fine at common law. But a fine with proclamation is a bar to the estate tail; yet a fine with warranty will not be a bar to the claim of the land, as heir to his uncle. Therefore the case is this: A man had issue two sons, and gave lands to the youngest and the heirs male of his body; then granted the reversion by fine with proclamation, had issue a daughter and died: and the right of a reversion descended to the daughter of his uncle, and whether this be *a bar to the claim of the reversion? was the question. It is no estoppel, for the entry of Robert determines the estate on the fine, and an estoppel shall not continue longer than the estate, as in Seymour’s case. 2. Because the daughter does not claim the land from him who levied the fine; although she may be his heir of other lands, as in 19 H. 8. Dyer 3. As if my uncle disseizes my father, and levies a fine with proclamation, and my father dies, and my uncle afterwards dies within five years, this does not bar me from claiming the land, although I am heir to him who levied the fine, but not as his heir, but as my father’s. 2 El. Dallison’s reports. One gave land to the eldest son of I. S. in tail, remainder to the father in fee or in tail. If the eldest son levies a fine and dies without issue, and the father dies, the fine is no bar to the second son. For although he be privy and ought to make his conveyance of the land, still he is not privy in the estate, and does not claim it through him. So, here the daughter does not claim the estate through her father, but through her uncle; therefore the fine shall be no estoppel to her. 24 E. 4. 47. If there be grandfather, father and son; the father makes feoffment in fee of certain lands with warranty and dies, afterwards other lands descend from the grandfather to the son: he shall not return the value, if he be vouched: for he does not claim through his father, although mention be made of him in the conveyance of his title. But if Alexander had survived his brother, then the right would continue. 8 H. 5. 7. If the son disseizes the father and levies a fine; after the father dies, and then the son: the land shall not descend to the second son: but if the eldest son had died in his father’s life time, it would have been otherwise. T. 21. Jac. in M‘Williams’s case, it was resolved, that if tenant in tail has issue two sons, and the eldest levies a fine during the life of his father, and dies without issue: the second son shall inherit, as heir to the father. Justice Jones, has *67 put another case: that if tenant in fee tail has issue two sons and the eldest disseises him, levies a fine and dies without issue, and the father dies; it is no bar to the second son. But Justice Jones says that his case was mistaken: for he put the case, that the eldest son levying the fine in the life time of his father, is no disseisin in alteration of the possession, for he is not heir to him of this land, although he may be so to him of other lands, and therefore the fine is no bar. Here is a new rights which comes after the death of the tenants for life, from the other ancestor. For there was here only a discontinuance for life, and the entry of the lessor, after the death of the tenants for life, tolls the discontinuance.