Sivut kuvina

main in statu quo: whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainderman or reversioner,p if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire, the estate is forever barred by it. Yet where a stranger, whose presumption cannot thus be punished, officiously interferes in an estate which in no wise belongs to him, [357] his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereuntor) by pleading that "partes finis nihil hahuerunt." And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea." Wherefore, when a lessee for years is disposed to levy a fine, it is usual for him to make a feoffment first, to displace the estate of the reversioner,t and create a new freehold by disseisin.5 And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.*

IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which, it was formerly observed," that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain [see note 68, page 557]; and afterwards encouraged by the finesse of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all re

p Ibid. 251,
q 2 Lev. 52.

r Hob. 334.

s 5 Rep. 123. Hardr. 401.
t Hardr. 402. 2 Lev. 52.
u pag. 117. 271.

5 Prior editions have here," or years."
*Cited generally, 10 Conn. 90; 20 Mass. 525.

mainders and reversions expectant thereon. I am now therefore only to consider, first, the nature of a common recovery; and, secondly, it's force and effect.

1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit or action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that it's form and method will not be easily understood by the student, who is not yet acquainted [358] with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. However I shall endeavor to state it's nature aud progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms, and phrases not hitherto interpreted.

Let us, in the first place, suppose David Edwards to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a præcipe quod reddat, because those were it's initial or most operative words, when the law proceedings were in Latin. In this writ the demandant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings are made up into a record or recov w See appendix, No. V.

x 1.

ery roll, in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon, Golding, the demandant, desires leave of the court to imparl, or confer with the vouchee in private; which is (as usual) allowed him. And soon afterwards the demandant, Golding, returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree: [359] and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee) it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in feesimple, from Edwards the tenant in tail, to Golding the purchasor.

The recovery, here described, is with a single voucher Z pag. 301.

y 12.

only; but sometimes it is with double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the præcipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee.* For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised;* whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default; whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchec; who recovers the like against Morland the common [360] vouchee, against whom such ideal recovery in value is always ultimately awarded.

This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For, if the recoveree should obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing) these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail. This reason will also hold with equal force, as to most re

a See appendix, pag. xviii.

b Bro. Abr. tit. Taile. 32. Plowd. 8.

c Dr. & St. b. 1. dial. 26.

*Cited, 3 Call, 408.

maindermen and reversioners; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to; but it will not always hold; and therefore, as Pigott says,d the judges have been even astuti, in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that, though the estatetail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs, and assigns: and, as the estatetail so continues to subsist forever, the remainders or reversions expectant on the determination of such estate-tail can never take place.

To such awkward shifts, such subtile refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design, for which these contrivances were set on foot, was certainly laudable; the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot but admire the means. *Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands.* But, since the ill consequences of fettered inheritances are now generally seen and [361] allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis; which perhaps, by reviving the old doctrine of conditional fees, might give birth to many

d of com. recov. 13, 14.

*-* Quoted, 1 Whart. 152; 9 Serg. & R. 364.

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