case smith against pierce Trinity term James roll if a term for year be devise  for the payment of debt with remainder over in tail and he in remainder enter  and levy a fine and settle the land upon his wife for life and die quaere if  the wife survive and the debt be not pay whether this term be bar by the fine  and nonclaim S c show S c comb S c Carth   cro Elizabeth Leon vern vern Mod  Mod Mod Mod pale yellow e r fitzg comy case t t Peer wms Peer wms bring wms ld  ray   dig Bac Abr a special verdict be find in ejectment the substance of  which be that Robert basket be seize in fee of the land in question and by his  will devise it to Philip basket and other for ninetynine year with power to  grant estate for the payment of the debt and legacy of the testator the  remainder in tail to John basket his brother but that if he give security to  pay the say debt and legacy or shall pay the same within a time limit that  then the trustee shall assign the term to he c John basket enter after the  death of his brother with the assent of the say trustee and receive the profit  and pay all the legacy and all the debt except eighteen pound the jury find  that John have issue a daughter only by his first wife after who death he  marry another woman and levy a fine and make a settlement in consideration of  that marriage upon himself for life and upon his wife for life with diverse  remainder over that he die without issue by his second wife that the second  wife enter and five year be pass without any claim c and now the heir at law  in the name of the trustee bring this action the question were First whether  the land for ninetynine year thus devise to the trustee be bind by this fine  and nonclaim or not?Secondly whether it be divest and turn to a right at the  time of the fine levy for if it be not then the fine can not operate upon it  it be agree that as a seize be to a freehold so be a divest to a term and that  a fine and nonclaim be no bar but where the party at the time of the levy  modern er p thereof have a will to enter and when the estate of which it be  levy be turn to a right that in the case at the bar the entry of John basket  be tortuous because the legal estate be still in the trustee but that if he  have gain any right by his entry it be only a tenancy at will to they for they  take notice of the devise and he enter by their consent and such a right be  not assignable and then a fine levy be no bar modern to prove this Margaret  Prodgers case   a be cite where the lord grant a copyhold to John Elizabeth  and mary for their life and afterward by deed enrol sell the land to John in  fee and levy a fine to he and his heir c and five year pass without any claim  John die his son enter and levy another fine to trustee to the use of himself  and Margaret his wife for life the remainder to his own right heir the son die  and his wife survive who have a freehold for life distrain and the husband of  Elizabeth bring a replevin and it be adjudge that this fine and nonclaim do  not bar those in remainder because the bargain and sale to John do not divest  their estate and turn it to a right raym Hardres Plowd vezey sheep touch burr  a for the lord do what he may do and John accept what he may lawful take who  be in possession by virtue of a particular estate for life can not by this  acceptance divest the estate of her who have the freehold and the fine and  nonclaim can not do it for to what purpose shall he make any claim when he be  in actual possession of the thing to be demand and he who be so in possession  need not make any claim either to avoid a fine or a collateral warranty now  though at the commonlaw there must be livery and seize to create a estate of  freehold Fermors case co b yet any thing be sufficient to make a estate at  will in which neither the inheritance nor the title of the land be concern and  therefore a fine levy by such a tenant be no bar it be true if a lease be make  for a hundred year in trust to attend the inheritance and beneficiary and  trust continue in possession and demise to another for fifty year and levy a  fine and the five year pass without claim he be still in possession after the  first lease make be thereby become tenant at will and by make the second lease  the other be divest and turn to a right though he be not a seize and so it be  bar by the fine because the beneficiary and trust of the term of one hundred  year be also owner of the inheritance freeman v barn I side Bac Abr c but in  the case at the bar John shall not be a seize but at the election of the  trustee of the term of ninetynine year to prove which there be many authority  in the book do on the demise of Atkins v Horde d as if tenant at will make a  lease for year and the lessee enter it be not a seize but at the election of  he who have the freehold latch Leon light S see tailor v Horde I burr  Goodtitle v duke of chandos burr stram e and even in such case if the tenant  of the freehold shall make a grant of the land it be good though not make upon  the land itself for he shall not be take to be out of possession but at his  own election modern it be like the common case of a mortgagee for year where  the mortgagor continue in possession twenty year afterward and pay the  interest and in that time have make lease and levy a fine this shall not bar  the mortgagee for the mortgagor be but tenant at will to he the trustee need  not make any claim in this case because there be no transmutation of the  possession so they can take no notice of the fine it be true John basket enter  by their consent but still as tenant at will to they and the act do by he  after his entry will not divest this term for though he make a bargain and  sale of the land yet nothing will pass thereby but what of right ought to pass  he likewise demise the land to undertenant for year but it be not find that  they enter but admit they do enter yet that can not displace this term for  these tenant claim no more than for one or two year and make do pretence to  the whole term but if by either of these act the term shall be divest yet  still it must be at the modern er p election of those who have the interest in  it dyer a the case of blunden v Baugh cro car roll Abr b which be ground upon  Littleton text sect be a authority to this purpose the father be tenant in  tail and his son who be tenant at will make a lease for year then both father  and son join in a fine to the use of the son for life and to Elizabeth his  wife for life the remainder to the heir male of the body of the son who die  without issue male the lessee be in possession make a conveyance of the estate  by bargain and sale to Charles Lord Effingham who be son and heir of the  tenant in tail and he make a lease to the plaintiff who be oust by the  defendant Elizabeth and the question be whether by the entry of the son who be  tenant at will and his make of this lease the father be seize of the freehold  and it be hold not for it be find in the verdict that he occupy at will and  enter by his father assent the lease be also intend to be make by his assent  but on the other side it be say that this fine be a bar by the express word of  the statute of Henry c which exclude in all case but where there be fraud or  the person be incapable or where the right to be bar be not divest modern in  this case John basket have a interest and present right and though it be cloth  with a trust yet that will not make any difference here be no fraud for the  fine be levy by tenant in tail in possession but if there have be fraud it  ought to be find otherwise it shall not be presume cro car   c this be not  like Blundens case for there the son be tenant at will but it be not find by  this verdict that John occupy at will there be no difference between this term  and a trust of a term to attend the inheritance who interest shall be bar by  such a fine and nonclaim because the trust be include in the fine and  therefore the trustee not make of their claim within the five year be for ever  exclude it can be deny but that a term for year be such a interest as may be  bar by fine it be Saffins case   d express which be a lease for year to  commence in going to be after a lease then in be shall be determine the first  lease end the second lessee do not enter but the reversioner do and make a  feoff and levy a fine and five year pass without entry or claim by the second  lessee and it be adjudge that this fine be a bar to he for when his future  interest commence then and not before he have such a present interest in the  land as may be divest and turn to a right to which it be answer that this  differ from Saffins case which be a interest termini and Alports case which be  a executory devise if John basket have still continue in possession it may  have alter the case but he die and his wife enter and then the five year pass  without any claim Adjournatur this case be argue again in Michaelmas term I  will mary SC comb SC Carth but no judgement appear to have be give Lord chief  baron Gilbert however in notice this case say that upon the difference take in  the case of freeman v barn it shall seem that the term be not bar for then it  must turn to the prejudice of honest creditor who be stranger and three person  and John basket by his entry on the trustee can be only tenant at will because  his entry be with their consent and no manner of intent appear in he to divest  their estate or interest and then his fine shall operate only on his own  estatetail like a fine levy b a mortgagor who be but tenant at will to the  mortgagee and who act be by permission of the mortgagee shall not turn to his  prejudice though he continue some say the five year and nonclaim pass in the  lifetime of the wife who be the survivor make a great difference in the case  therefore quaere Bac Abr lease see SC show Saffyns case   Edward v slater hard  focus v Salisbury hard Cabol v stone ray freeman v barn I vent lev cruise on  fine earl pomfret v Lord Windsor vezey Com dig fine I draper company v Yardley  vent a modern er p