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)