Introduction
Advantages

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Institute of Historical Research

Publication

Author

C.W. Foster (editor)

Year published

1920

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Pages

37-39

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'Introduction: Advantages', Final Concords of the County of Lincoln: 1244-1272 (1920), pp. XXXVII-XXXIX. URL: http://www.british-history.ac.uk/report.aspx?compid=53611 Date accessed: 22 July 2014.


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X. ADVANTAGES OF A FINAL CONCORD

Procedure by way of final concord offered certain important advantages:

(1) A final concord provided incontestable evidence of the transaction to which it related. If men conveyed land by means of a charter of feoffment, followed by livery of seisin, the document might be lost or destroyed; or a charter might be forged, and to prove the forgery might be difficult. But if they proceeded by way of final concord, there was always the foot of fine preserved in the treasury at Westminster, which would immediately settle the question of the genuineness of a chirograph, or supply its place if it had been lost. (fn. 1)

(2) A man who was a party to a final concord could, as was mentioned above, (fn. 2) be compelled to perform its covenants.

(3) The chief advantage, however, of a final concord has been already referred to, (fn. 3) namely that it closed the door to any further litigation about the title. If anyone who was not one of the parties to a concord considered that he had any right in the land, he was bound to assert that right and put in his claim within a limited term, otherwise (except in a few special cases) he was barred for ever. In words already quoted, (fn. 4) 'finis sic uocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causa prouidebatur.' (fn. 5) In the middle of the thirteenth century a term of fifteen days was allowed from the time when the concord was made in court; and a little later the period was extended to a year and a day. (fn. 6) The present volume supplies many instances of claims which were put in, and endorsed upon the feet of fines. (fn. 7) How this preclusive bar originated is uncertain, but it gave a final concord an enormous advantage over a mere charter of feoffment, setting up, as it did, an indefeasible title to the property with which it was concerned. (fn. 8) As Professor Maitland observes:

When we remember how easily seisin begets proprietary rights, how at one and the same moment half-a-dozen possessory titles to the same piece of land—titles which are more or less valid—may be in existence, we shall not be surprised at the reverential tones in which the fine is spoken of. It is a piece of firm ground in the midst of shifting quicksands. (fn. 9)

The statute, Modus Levandi Fines, which is generally ascribed to the time of Edward I, but which is of doubtful authority, after enacting that a final concord must not be levied without an original writ, and before at least four justices in the bench or in eyre, etc., continues:

and the Cause wherefor such Solemnity ought to be done in a Fine, is, because a Fine is so high a Bar, of so great Force, and of so strong Nature in itself, that it concludeth not only such as be Parties, and Privies thereto, and their Heirs, but all other People of the World, being of full Age, out of Prison, of good Memory, and within the Four Seas, the Day of the Fine levied; if they make not their Claim of their Action within a Year and a Day by the Country. (fn. 10)

(4) A final concord served equally well for simple conveyances, for family settlements, and for the creation, transfer, or release of rights and interests in land. If the tenendum (the clause beginning 'to hold,' or, 'to have and to hold,' 'habendum et tenendum'), is to A and his heirs in return for a money payment or service or other consideration, it is probably a case of simple conveyance. (fn. 11) If the grantor is married, his wife will generally be a party to the concord in order to release her right of dower. If the land is to be held of the grantor and his wife and his heirs, it is the husband's property that is being dealt with; if it is to be held of the grantor and his wife and her heirs, it is the wife's property. (fn. 12) The last class of concords was very common. There was no such necessity for the grantee to make his wife a party to the concord unless he wished her to have a greater interest in the land than her legal dower of one-third. But if, for instance, he wished her to have a life interest in the whole, the tenendum would be to the husband and wife and the heirs of the husband. (fn. 13) When two or more persons join in granting land in which they have an equal interest, (fn. 14) it is very probable that they are coheiresses, or the heirs of such coheiresses, to whom the land has descended in default of heirs male. (fn. 15)

A final concord was the simplest and safest way by which a family settlement could be made. In such cases the tenendum is not to A and his heirs, but is limited in some one of many possible ways. There may be a grant to a man and the heirs of his body (fn. 16) ; or to the grantee and his wife and the heirs of their bodies. (fn. 17) Other kinds of limitations begin to be common early in the thirteenth century. (fn. 18)

When the object is to release some right or interest in the land the distinctive words are 'release,' or 'remise,' or 'quitclaim.' Among interests released are dower, life-estates, remainders, and reversions. Releases are very common in the early concords; but the nature of the interest released is seldom specified, since it was the practice to give a general release of the whole of the land, however small the interest to be released might be. (fn. 19)

(5) A final concord was the only method by which a married woman could give a good title when selling land. When the action came into court she was examined by the justices in order that they might satisfy themselves that she was not acting under duress. If she were to proceed by charter of feoffment instead of by final concord, there would be the danger that, if she became a widow, she might dispute the validity of the conveyance on the ground that, while her husband lived, she had no will of her own.

(6) If a tenant refused to attorn himself, that is to turn his service over from the grantor to the grantee, he could be forced to appear before the court and confess the terms of his tenure. The court would then compel him to attorn himself or, in default, would itself attorn him. (fn. 20)

Footnotes

1 Hist. Eng. Law, ii, 100.
2 Pages xxxv, xxxvi.
3 Page xii.
4 Page x.
5 In a suit in the year 1194 we seem to have an example of the preclusive bar. One of the parties produced a chirograph, and the other craved a view of the land. A note, however, apparently added after the text was written, states that it is considered that a view ought not to be made because a fine was made thereof (consideratum est quod non debet fieri visus quia finis factus fuit inde) (Rot. Cur. Reg., i, 30. See also ibid., i, 4, 39–41; Rolls of K.C., 29, 30).
6 Maitland, Collected Papers, ii, 70, 71.
7 See below, pp. 12, 22, 34, etc.
8 Hist. Eng. Law, ii, 101–2. See above, p. xii.
9 Hist. Eng. Law, ii, 102.
10 Statutes, i, 214.
11 See below, pp. 7, 8, no. 21; p. 13, nos. 41, 43; p. 14, no. 46; etc.
12 See below, pp. 2–3, no. 2; p. 3, nos. 3, 6.
13 See below, pp. 52–3, no. 4.
14 See below. p. 12, no. 38; p. 18, no. 56; p. 27, no. 84; p. 59, no. 27.
15 For the substance of this section I am indebted to Mr. W. Paley Baildon, Feet of Fines for the County of York, Yorkshire Archæological Society, Record Series, vol. xlii, pp. vi, viii.
16 See below, p. 37, no. 11; p. 272, no. 122; etc.
17 See below, p. 20. no. 65; p. 32, no. 99; p. 47, no. 34; etc.
18 See below, p. 13, no. 42; p. 18, no. 46; pp. 30–1, no. 97; etc. See also section XVI (3).
19 W. Paley Baildon, op. cit., pp. viii-x.
20 For examples of attornment, see below, p. 12, no. 38; p. 44, no. 31; etc.