93. Fieri non debuit, sed factum valet. It ought not to have been done, but having been done is valid.
A marriage by persons under the age of twenty-one years without the consent of their father is valid, although by 4 Geo. IV. c. 76, s. 16, such consent is made requisite. (See Max. No. 228.)
94. Foreclose down, redeem up.
A mortgagee can only foreclose those claiming an interest in the mortgaged property after himself; but a mortgagor must redeem every mortgage, and any mortgagee, in order to obtain the rights of a first mortgagee, must redeem all mortgages prior to his own. (See Snell’s Eq. 16th ed. Chap. XVI.)
95. Fractionem diei non recipit lex. The law takes no note of a fraction of a day.
When an act has to be done on a certain day, the whole of that day is allowed in which to do it. This rule has exceptions, however, for in case of documents registered on the same day, priority of registration may be shown by the numbers, and this becomes, at times, of the utmost importance.
96. Frater fratri sine legitimo haerede defuncto, in beneficio quod eorum patris fuit, succedat; sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in feudum non succedit. A brother may succeed a brother who has died without lawful heir in the benefice which belonged to their father; but if one brother shall have received a feud from a lord, if he dies without a lawful heir, his brother does not succeed to the feud.
This is one of the old laws of inheritance, which are still of importance as leading to a perfect understanding of the Act of 1833. Formerly no one could succeed to an inheritance unless he was not only of the blood of the purchaser, but also his lineal issue, consequently one brother could not succeed to another brother’s inheritance, of which the latter was the purchaser, because he could not be his brother’s lineal issue, but where the inheritance had originally descended from an ancestor, one brother could succeed another, as he might be the lineal issue of such ancestor. (See Steph. Comm. I. 15th ed. p. 257 et seq., also next Maxim and No. 203.)
97. Frater fratri uterino non succedat in haereditate paternâ. A brother shall not succeed a brother of the half blood in the father’s estate.
Another old law of inheritance, under which the half-blood were totally excluded, the land escheating to the lord of the manor rather than go to a kinsman bearing this relationship to the person from whom descent was to be traced. Now, however, since the Inheritance Act, s. 9, it is otherwise, the place in which any such relation by the half-blood stands in the order of inheritance being next after any relative in the same degree of the whole blood, and his issue, where the common ancestor is a male, and next after the common ancestor, where such common ancestor is a female. (See Steph. Comm. I. 15th ed. p. 257 et seq., also last Maxim and No. 203.)