Catalogue description Records relating to the Conveyancing of Land and Property Title

The arrangement of feet of fines is fully covered at series level.

The arrangement of the concords of fines (CP 24/1-13) into 13 separate series in chronological order is a consequence of the way they were sorted, wrapped, labelled and listed in the nineteenth century. They comprise a single series of documents covering a long period. Before that they were arranged in term files which had largely been broken up, and few of which dated from before the reign of Elizabeth I. Until 1760 they continue to be arranged in term bundles; where two separate files cover the same term, the file is in two parts. In the early 1990s some complete and original term files of concords were found among unsorted writ miscellanea. They are now in CP 61

The notes were also kept in term files. From 1509 onwards the series of notes is fairly complete, although the files are not in their original format. Most of the original files broke and the surviving material was rearranged in the present 14 separate series (CP 26/1-14) in the nineteenth century. When they were repaired then the earlier ones were usually restrung, whether in their original order or not is unclear. The notes from the later seventeenth century onwards were arranged in small county files joined with pink tape, and are consequently easier to search.

Final Concords

By 1163 indentured agreements called final concords to end disputes brought before the king's court were being made in that court. On 16 July 1195 the court began to keep and file a copy of each such indenture, known as the 'foot' of the fine. Leave to make an agreement to end a dispute could be obtained except in cases involving injury or tort, and involved a payment of a fine for 'licence to concord.'

Early fines were genuinely contentious cases, but by the thirteenth century it became increasingly common for collusive cases to be brought with the specific intention of levying a final concord and securing a record of the transaction in the archives of the king's court. The increasing professionalisation of the law meant that the use of collusive suits to levy final concords was well established by the later thirteenth century, presumably as attorneys advised their clients to use such a convenient device.

By the reign of Edward I, final concords were regularly said to have been obtained by a named serjeant. The serjeant asked the justices for permission to concord, agreed the fee payable for the licence, and recited the proposed terms in court for his client. The concord was the document which was actually read out in court, and is the fullest record of the process.The concord is a fuller record of the whole transaction than the foot of the final concord, which was retained by the court, or the note of the fine, which was used to draw up the final concord.

The earliest concord (from 1320) is in the form of endorsement on a writ of dedimus potestatem which gave power to commissioners to record the agreement by the parties involved. Later the concords were more often taken in court than by commissioners, and are usually on separate pieces of parchment. Their arrangement and content subsequently changed little down to the abolition of fines in 1834.

Notes of fines may have existed from the very beginning of the feet of fines in 1195. Their existence is referred to in 1199, and the earliest surviving example comes from 1200. Notes were certainly being filed separately by 1239. There are many early references to justices or their clerks being in the possession of notes. However, it seems likely that what was called a 'note' in these earliest references may often have been what was later called the concord, a text written by an attorney and read out in court, rather than the note, which was used by the chirographer to draw up the final concord.

During the thirteenth century final concords were levied in cases brought on a variety of writs concerning land, but the most popular was the writ of warranty of charter. During the reigns of Edward I and Edward II it gradually lost ground to the writ of covenant, which alleged that the defendant had failed to keep an agreement. Writs of covenant took over completely after the first few years of the reign of Edward III and continued to be the writ upon which fines were almost invariably levied until their abolition in 1833.

To levy a fine a fictitious action was brought in Common Pleas by means of a writ of covenant, which alleged the breaking of a promise to convey the estate in question. The writ was purchased from the Cursitor's Office of Chancery for a fee called the primer fine, or pre-fine, charged on a sliding scale according to the annual value of the estate nominally in dispute. When the case came to court the defendant, in fact the intending grantor, agreed to fulfil his promise, so the plaintiff, in fact the intended grantee, purchased a licence to concord, to enable the suit to be concluded without his suffering any penalty for non-prosecution.

Other aspects of the process of levying a fine became more complicated as time went on, and was sometimes regulated by statute. After the statute of 1489 concerning proclamations of fines, the dates on which the proclamations were made came regularly to be endorsed on the feet. The writ of covenant and the note of the fine were retained by the chirographer among his records, but the concord and the foot were filed by the custos brevium. In accordance with the statute of 1489, the agreement was read out on four days at the end of the term during which it was engrossed, and in three succeeding terms. There were thus 16 separate proclamations for each fine, and the custos brevium endorsed the foot with their dates.

The forms of agreement varied, but by the mid sixteenth century there were five main ones, of which four were variant forms of admission of right: sur cognisans de droit come ceo; sur cognisans de droit tantum; sur cognisans de droit with release; and sur done, graunt et render. The other was in the form of a grant, sur graunt et render. By the mid sixteenth century at least the consideration paid by the recipient of the estate for the concord was always twenty times its annual value as sworn by the attorney in the endorsement on the writ of covenant. By the nineteenth century both the face and the endorsement of the foot of fine were on a printed form.

Common Recoveries

The common recovery was a legal device developed by lawyers during the fifteenth century to enable entailed estates, in 'fee tail', created as a result of the statute De Donis Conditionalibus (1285), to have their entails broken so that they could be disposed of at will instead of remaining inalienable. By the reign of Henry VIII it was sufficiently well-established to be referred to in legislation (35 & 36 Henry VIII, c 20) as a 'feigned recovery', to distinguish it from a genuine one, and the first reference to the 'common recovery' occurs in 1528.

In its earliest form, the person to whom it was intended to alienate the entailed estate brought a real action, often on a writ of precipe in capite, against the tenant in tail on an imaginary title to the property; before 1500 the initiating writ came regularly to be a writ of entry sur disseisin in le post, which it thereafter always remained. The tenant then appeared in court to make his defence, vouching a third party to warrant the title to him.The vouchee chosen was a man with little or no property, who could not in reality provide property of equivalent value to make good the loss suffered by the tenant. By the 1480s a single individual, the common vouchee, had regularly come to perform this function, and later it was always performed by a minor officer of the Court of Common Pleas, such as, in 1668, the bag bearer of the custos brevium. The common vouchee would appear and defend the tenant's title, but would then default at a subsequent hearing, allowing judgment against the tenant, whose only recompense was then to sue the landless vouchee. Since that tenant was in effect selling the property, the only losers were the disinherited heirs in tail.

Once established the device became ever more elaborate, as procedures to try to counter it were developed, particularly by the use of two or more successive vouchees. In 1833, both these forms of property transfer were abolished by the Statute of Fines and Recoveries, and this significant source of revenue to the crown ceased.