a fine. But, if an idiot or lunatic be vouched by attorney, such an averment would be admitted, upon the same principle, that an averment of infancy may be made against a warrant of attorney, acknowledged by an infant, for the purpose of suffering a common recovery; as the fact of idiocy or lunacy may be tried by a jury, as well as that of infancy (w). (w) Beverley's case, 4 Rep. 126 b; Cro. Eliz. 187; Hume v. Burton, 1 Ridg. P. C. 16. The effect of fines and recoveries by lunatics attracted the attention of the commissioners appointed to inquire into the law of England respecting real property; who made the following observations upon the subject: "Courts of justice attach so much importance to the records of their proceedings, that they will not allow any averment or evidence to contradict them. Although this principle may be perfectly correct in real adversary suits, yet its application to fines and recoveries, which are now regarded by the Courts as common assurances, has, as we shall proceed to shew, produced a strange anomaly, by rendering them conclusive, so far as respects the capacity of parties, where other common assurances would not be so. If an infant levy a fine, or in person suffer a recovery, such fine or recovery is conclusive on all persons, unless avoided during his minority, upon inspection of his person by the Judges, or unless his minority be found by the inspection of his person by the Judges, and recorded before he attains twenty-one. "If an infant suffer a recovery by attorney, it may be avoided, either during his minority, or after he comes of age; because the appoint ment of an attorney by an infant is void, and that fact may be tried by a jury. If a lunatic levy a fine, or in person suffer a recovery, such fine or recovery is of itself considered conclusive evidence of his capacity, and, therefore, cannot be avoided. "If a lunatic suffer a recovery by attorney, the recovery may be avoided for the same reason as stated with regard to an infant. In every case, in which an infant or lunatic levies a fine, or, in person, suffers a recovery, the fine or recovery is primá facie evidence of his capacity, by deed, to declare the uses of it; because it is held, that the fine or recovery is conclusive as to the lunatic; and also as to the infant, in case he should not avail himself of the term given him for avoiding it. If a recovery should be suffered, either in person or by attorney, by an infant or lunatic, tenant-in-tail in possession, who should make the tenant to the præcipe by any other deed than a feoffment, with livery of seisin in person; in that case, the deed, being the principal, would, if the fact of the infancy or lunacy of the party were found by a jury, be void; and the recovery, being the accessary, would be set aside, on the ground of there being no tenant to the præcipe. So that the recovery, although it could not be directly questioned, might be indirectly avoided Although no averment of idiocy or lunacy can be made. against a recovery, where the parties appear in person, yet evidence of weakness of understanding has been admitted to invalidate a deed to make a tenant to the præcipe for suffering a common recovery: and the recovery has in that way been set aside (x). And although an averment of idiocy may be made against a vouchee who appears by attorney, yet neither an inquisition finding that a vouchee was not an idiot, or of unsound memory; nor the caption of a warrant of attorney to suffer a common recovery, appearing upon record to have been taken by the Chief Justice of the Common Pleas out of Court; nor a fine acknowledged before the same Chief. Justice on the same day with the warrant of attorney, for the purpose of making a tenant to the præcipe, are conclusive evidence of the sanity and capacity of the vouchee (y). There is an essential difference between the caption of a "The Court may be imposed upon, and instances of such imposition are to be found in our Law Reports, and occasionally occur in practice; and there is no redress, unless equity can interfere on the ground of fraud." by invalidating the deed for making be considered as having, on one and the tenant to the præcipe. But, if the same day, sufficient sense to sufthe tenant to the præcipe were made fer a recovery, but not to execute a by a fine, and a deed declaring the deed. use to the tenant, or by a feoffment, with livery of seisin in person, the recovery could not be set aside for want of a good tenant to the præcipe, although the fine, in case of the infant, or the feoffment, in the case of the infant or lunatic, should be First Report of Commissioners on avoided. If a recovery should be suf- the Law of Real Property, ordered by fered by a lunatic in person, evi- the House of Commons to be printdence would not be admitted to shew ed, 19 May, 1829, pp. 27, 28. his incapacity. But, if he should make the tenant to the præcipe by deed alone, and not by fine and deed declaring the use to the tenant, evidence would be admitted to shew his incapacity to execute the deed, though it may have been executed on the same day on which he appeared in Court, so that he would A bill is now before Parliament, which proposes to abolish fines and recoveries, and to substitute deeds of conveyance, which are to have the same effect. (x) Wentworth v. Cholmley, cited 3 Atk. 313; 1 Ridg. P. C. p. 549. (y) Hume v. Burton, 1 Ridg. P.C. 204. fine and a warrant of attorney for suffering a recovery; in the former, the law requires a previous examination into the age, condition, and mental capacity, but no examination is by law required previously to the caption of the warrant, although in practice it is done; but the warrant of attorney is the act of the party, a matter in pais, and triable by a jury (≈). Where a vouchee had executed a warrant of attorney whilst sane, but, before the passing of the recovery, his intellects became impaired, the Court would not allow the recovery to pass; for, if the vouchee had been restored to his reason, he might have revoked such warrant before the passing of the recovery (a). But, if one of several vouchees becomes insane, after having executed a joint warrant of attorney, but before the perfecting of the recovery, it may pass as to all the parties except the lunatic (b). Recognizances and statutes entered into by a non compos, being matters of record, and equivalent to judgments of the superior Courts, can be avoided neither by the parties nor their heirs, executors, or administrators (c). The statute of the 10 & 11 Will. 3, c. 14, after reciting that theretofore fines, common recoveries, and ancient judgments, were reversible at any time without limitation, for error, enacted, that no fine, or common recovery, nor any judgment in any real or personal action, should thereafter be reversed or avoided for any error or defect therein, unless the writ of error, or suit for the reversing such fine, recovery, or judgment, be commenced or brought and prosecuted with effect within twenty years after such fine levied, or such recovery suffered, or judgment signed or entered of record. This statute contains the proviso, "that, "if any person who shall be entitled to any such writ of error as aforesaid, shall, at the time of such title accrued, be (z) Thompson v. Leach, 1 Lord (b) Vale and Others, Vouchees, 5 Raym. 313; Stokes v. Oliver, 5 Mod. Bing. 76; S. C. 2 Moore & Payne, 209; Ex parte Roberts, 3 Atk. 308; 264. Hume v. Burton, 1 Ridg. P. C. 16. (a) Walcott, Vouchee, 11 J. B. Moore, 307; S. C. 3 Bing. 423. See 1 Burr. 410. (c) Perk. s. 24; 4 Rep. 124 a; 10 Rep. 42 b; 2 Inst. 483; Bac. Abr. tit. "Idiot and Lun." (F). within the age of twenty-one years, or covert, non compos mentis, imprisoned, or beyond seas, that then such person, his or her heirs, executors, or administrators (notwithstanding the said twenty years expired) shall and may bring his, her, or their writ of error for the reversing any such fine, recovery, or judgment, as he, she, or they might have done in case that act had not been made, so as the same be done within five years after his or her full age, discoverture, coming of sound mind, enlargement out of prison, or returning from beyond the seas, or death, but not afterwards or otherwise." It has been held, under this statute, that a writ of error cannot be brought by the reversioner after twenty years, although his title had not previously accrued (d). Persons born deaf and dumb will be allowed to levy fines and suffer recoveries, if, upon examination by the Judges, it appears that they possess sufficient sense to understand the nature and effect of such assurances; and persons so affected may also enter into other contracts (e). Although, if an idiot or lunatic has by any neglect or contrivance been permitted to levy a fine, his declaration of the uses thereof will be good at law so long as the fine remains in force; and, if the fine is never reversed, his declaration of the uses will be binding and conclusive on him and his heirs for ever: yet, as the Court of Chancery has, in many instances, compelled persons who have obtained estates under a fine in a fraudulent manner, to reconvey them to those who were really entitled, so that Court will interpose its authority in cases of this kind, and not suffer the declaration of uses of a fine levied by an idiot, or lunatic, to bar his heirs, as no species of fraud can be more evident than that of obtaining a conveyance from a person of this description. Thus, where a party had been found by two inquisitions a lunatic without any lucid interval, and the defendant had obtained a mortgage, and at last an absolute conveyance (d) Lloyd v. Vaughan, 2 Str. Abr. tit. "Fine," (D. 10.) pl. 9, 10; 1257. Griffin v. Ferrers, Barnes, 19; Keys (e) Elliot's case, Carter, 53; Vin. v. Bull, Id. 23. at a great undervalue, by deeds, fines, and recoveries. The Court set aside the purchase, and decreed that the defendant should be allowed what he should prove had been paid by him for the use of the lunatic (ƒ). Where fines and recoveries have been obtained by fraud and circumvention from idiots or lunatics, the party taking the benefit of them will be compelled to reconvey to them (g), or to their heirs (h), on payment of the consideration really advanced. And a settlement by recovery obtained from a person deaf and dumb by his uncle who took an interest under it, was set aside, although reasonable in itself, the party conveying not having had the assistance of an able and faithful relation (¿). In another case, the Court relieved against a fine levied upon a possession obtained under a forged deed (4). And Lord Hardwicke observed, though a fine has been levied, yet, if it has been under circumstances of fraud, the Court ought to prevent the stealing away an estate in that manner (1). Where the Court entertains a doubt as to the capacity of a party at the time a fine was levied or recovery suffered, an issue will be directed to try that fact. Thus, where a lunatic settled his property on himself and his family by deed, fine, and recovery, and a bill was filed for relief against the settlement, and the evidence as to capacity was not satisfactory; the Court directed an issue to try whether the grantor was a lunatic at the time of the execution of the settlement, and whether with lucid intervals; and, if so, whether the settlement was made in a lucid interval (m). In a recent case, it appeared, that, by a marriage settlement made in the year 1776, estates were conveyed and settled to the use of the father and mother of the lunatic, for (f) Addison v. Dawson and Others, 2 Vern. 678. (g) Welby v. Welby, Toth. 164; Wright v. Booth, Id. 166. (h) Coleby v. Smith, 1 Vern. 265. (i) Ferres v. Ferres, 2 Eq. Cas. Abr. 695. (k) Cartwright v. Pultney, 2 Atk. 381. (1) Baker v. Pritchard, alias Hosier, 2 Atk. 381. (m) Clerk v. Richards and Another, 2 Vern. 412. |