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destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.

Thus much for the nature of estates-tail: the establishment of which family law (as it is properly stiled by Pigotts) occasioned infinite difficulties and disputes. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our antient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new 2contentions,2 and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.: which were then openly declared by the

g Com. Recov. 5.

h 1 Rep. 131.

i Co. Litt. 19. Moor. 56. 10 Rep. 38.

2 In second and third editions, "conventions."
**Quoted, 2 Leigh, 221; 21 Am. Dec. 609.

judges to be a sufficient [117] bar of an estate-tail. For though the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles,1 yet it never was carried into execution; till Edward IV. observing m (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court:" wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal:* and, that these recoveries, however clandestinely begun,9 are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements:* so that no court will suffer them to be shaken or reflected on, and even acts of parliament have by a sidewind countenanced and established them. t

k 1 Rep. 131. 6 Rep. 40.

1 10 Rep. 37, 38.

m Pigott. 8.


Year book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit. faux. recov. 20 Bro. Abr. ibid. 30. tit. recov. in value. 19 tit. taile. 36.

O 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 41. Eliz. c. 8. 4 & 5 Ann. c. 16. 14 Geo. II. c. 20.

9 Ninth edition reads "introduced."

*-* Quoted, 2 Leigh, 232; 21 Am. Dec. 618.

† Cited, 20 Ga. 828; 3 Binn. 300; 1 Iar. (Del.) 51.

This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently [118] resettled in a similar manner to suit the convenience of families, had address enough to procure a statute, whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.

The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28, whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, by the statute 32 Hen. VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons, claiming under such entail. This was evidently agreeable to the intention of Henry VII., whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere

p 26 Hen. VIII. c. 13.

q. 4 Hen. VIL. c. 24.

implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had against tenants in tail where the estate was created by the [119] crown, and the remainder or reversion continues still in the crown, shall be of any force 5 and 5 effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estatestail, where the royal prerogative is not concerned.

Lastly by a statute of the succeeding year, all estatestail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws, they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz c. 4. an appointment by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.


Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defcat the interest as well of his own issue, though.

r Co. Litt. 372.

s 33 Hen. VIII. c. 39. 75.
t Stat. 21. Jac. I. c. 19.

u 2 Vern. 453. Chan, Prec. 16.

5 Previously, "or."

unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.*

NOTES OF THE AMERICAN EDITOR TO CHAPTER VII. (24) The next objects of our disquisitions are the nature and properties of estates, page 103.

Tenure as a continuous relation necessarily implies continuance in time, and thus furnishes the element of our modern conception of property, which was lacking in the Roman dominium. Property is unlimited in duration: hence our legal purists deny that it exists in the English law of real estate. (Austin, Lect. xlvii.) But the fee-simple, having an indefinite duration, i. e., admitting no remainder or reversion after it, fulfills tho common notion of property for all practical purposes, while the limited estates, for life, for years, etc., are regarded as only rights of possession, in comparison with it. Moreover, they are limited, in a way they would not have been before the introduction of this measure of ownership, by time: the present power of each holder over the land is measured by the "quantity," i. e., the duration of his estate, in a way entirely unknown to the Roman law, in which dominium might exist for a single year or day.

Property is not only "indefinite in point of userunrestricted in point of disposition " (Austin, ubi supra), but also unlimited in duration": and the last quality is really the most important one, and the condition of both the others.

We find, therefore, as we might expect, the conception of an "estate" making its first appearance in English *Cited, 13 Ind. 338.

2 BLACKST.-17.

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