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and conformity to the antient rule of law, that, though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the præcipe: and that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery; yet, if it be in the same term, the recovery shall be valid in law: and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the præcipe, and declare the uses of the recovery, shall [363] after a possession of twenty years be sufficient evidence, on behalf of a purchasor for valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.


Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them. And if a consideration appears, yet as the most usual fine, sur cognizance de droit come ceo, etc.," conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements (wherein a variety of uses and designations is very often expedient), unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family settlement. And, if these deeds h Pigott. 41, etc. 4 Burr. I. 115. i Dyer. 18.

are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A tenant in tail, with reversion + to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually covenants to levy a fine (or, if there be any 4 intermediate remainders, to suffer a recovery) to E, and that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified and no other. For though E, the cognizee or recoveror,5 hath a fee-simple vested in himself by the fine or recovery; yet, by the operation of [364] this deed, he becomes a mere instrument or conduit-pipe,* seised only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses. Or, if a fine or recovery be 4 Previously, "remainder."

9 Ninth edition inserts, "after making the settlement proposed." 4 Previously, "remainders over."

9 Ninth edition inserts, "directs."

5 Previously, "conusee or recoveree." **Quoted, 91 Mass. 26.

k This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the appendix, No. II. 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, viz. to Abraham and Cecilia Barker till the marriage; remainder to John Barker for life; remainder to trustees to preserve the contingent remainders: remainder to his widow for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to their first and other sons in tail; remainder to their daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it is necessary, in order to bar the estate-tail of John Barker, and the remainders expectant thereon, that a recovery be suffered of the premises: and it is thought proper (for though usual, it is by no means necessary: see Forrester. 167.) that in order to make a good tenant of the freehold, or tenant to the præcine, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker; and that the recovery itself be suffered against this tenant to the præcipe, who shall vouch

had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing it's operation to those particular uses. For by statute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding the statute of frauds 29 Car. II. c. 3. enacts, that all trusts shall be declared in writing, at (and not after) the time when such trusts are created.9


(66) Private acts .... are a common mode of assurance, page 344.

All our legislatures pass what are known as private in contradistinction from public or general acts; but for private acts in the English sense, as modes of conveyance to accomplish objects for which common forms and private powers would fail, there is little occasion in this country; nor would our constitutions allow them to be valid, if passed. Even in England, their number and importance has been very much diminished by recent statutes conferring enlarged power on the courts; e. g., to authorize leases and sales of settled estates, contrary to the terms of settlement. (19 & 20 Vict. c. 120, 1856.)

In this country the legislature cannot interfere with private property for private purposes: cannot take the John Barker, and thereby bar his estate-tail, and become tenant of the fee-simple by virtue of such recovery: the uses of which estate, so acquired, are to be those expressed in this deed. Accordingly the parties covenant to do these several acts (see pag. viii.): and in consequence thereof the fine and recovery are had and suffered (No. IV. and No. V.) of which this conveyance is a deed to lead the uses. 9 Ninth edition reads, " any doubts that had arisen on the statute of frauds 29 Car. II. c. 3. to the contrary."

property of A and give it to B. (Miller, J., in Loan Association v. Topeka, 20 Wall. 655; Hoke v. Henderson, 4 Dev. 1; 25 Am. Dec. 677.) It may dispense with formal rules, or disregard the distinction between real and personal property, or change forms and investments. (Wilkinson v. Leland, 2 Peters, 657; Norris v. Clymer, 2 Barr. 277.) The subject is admirably discussed by Judge Cooley, Constitutional Limitations, chapter 5, pages 97-106, and also pages 388, 390. (See, also, Judge Dillons' discussion of the power to waive legal requirements; Allen v. Armstrong, 16 Iowa, 508.)

(67) A grant made by the king shall be taken most beneficially for the king and against the grantee, page 347.

Similiar rules of construction are often applied to public grants by the state or United States in this country; and correctly so, with the qualification that all construction is now more liberal and equal between the parties than was formerly the case. There is of course no opportunity among us for public grants ex speciali gratia, or ex mero motu; but if there were, these would no doubt be construed more strictly, rather than liberally. Indeed, the fact that a public grant has been made as a matter of interest, for a va uable consideration, has been said with us to relax the rule, and put the grantee on the same footing with the grantee of a private person. (Charles River Bridge v. Warren Bridge, 11 Peters, 589.) The strict rule applies rather to the grant of franchises or prerogatives. (Martin v. Waddell, 16 Peters, 267; Dubuque v. Litchfield, 22 How. 66; Lansing v. Smith, 4 Wend. 9; 21 Am. Dec. 89; Hyman v. Reid, 13 Cal. 444.)

(68) Common recoveries were invented by the ecclesiastics to evade the statutes of mortmain, page 357.

It was said long ago, that when men attempt to give reasons for common recoveries they run into absurd

ities, and what they say is unintelligible jargon and learned nonsense! They have been in use some hundreds of years, have gained ground by time, and we must now take them as they really are, common assurances. (Willes, C. J., in 1 Wils. 73.) The remark might be of broader application; whenever men attempt to give reasons based on final causes and set purpose, for institutions that have grown up in time and been shaped by historical causes-instead of asking history to explain them by the facts and conviction of their own time-"they confound themselves and their readers," and spoil both the history and the philosophy of law by setting one to do the other's work.

At the same time it may be doubted whether the ecclesiastics have not had too much credit for the invention of recoveries, as for that of uses, etc. In both instances history shows that they only made use of processes that they found ready to their hands. The cases of the thirteenth century, just made accessible to us, show that both fines and recoveries were in common use for legitimate purposes at that time; in fact, that the one answered very nearly the end of an ejectment, the other that of a modern suit for specific performance. It was only when they had dropped out of service, except as mere conveyances, that they were supposed to have originated in a fraudulent design. So recoveries were said also to have been invented to destroy terms for years; at a time when terms for years were in fact much better protected by law than they have ever been since. (See note 36, page 257.)

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