litigations: or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or, lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term time and enrolled in some court of record; which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, but by the prece dent of the statutee 21 Jac. I. c. 19. which, in case of a bankrupt tenant in tail, ein powers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in passing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.* 9 2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates.† So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But, by statute 34 & 35 Hen. VIII. c. 20. no recovery had against tenant in tail, of the king's gift, whereof the remainder or reversion is in e See pag. 286. 9 Ninth edition reads, "and the decisions of our own courts of Justice which allow a tenant in tail (without fine or recovery) to ap point his estate to any charitable use,t but also by." [ See page ] *Cited, 9 Serg. & R. 339. *Cited, 5 Wall. 285. the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII. c. 20. no [362] woman, after her husband's death, shall suffer a recovery of lands settled on her by her husband or settled on her husband and her by any of his ancestors. And by statute 14 Eliz. c. 8. no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the præcipe by him made, must vouch the remainderman in tail, otherwise the recovery is void: but if he does vouch such remainderman, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had, it is as effectual to bar the estate-tail as if he himself were the recoveree.!* In all recoveries it is necessary that the recoveree, or tenant to the præcipe, as he is usually called, be actually seised of the freehold, else the recovery is void. For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose it's effect; since the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulæ, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the præcipe, is removed by the provisions of the statute 14 Geo. II. c. 20. which enacts, with a retrospect 1 Salk. 571. g Pigott. 28. 4 Previously, "in tail by way of jointure by her husband or." 9 Ninth edition inserts, "against the tenant to the præcipe." *Cited, 1 Ohio, 106, 501. 2 BLACKST.-47. 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. 9 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 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 3cognizee 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." 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 precine, 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 NOTES OF THE AMERICAN EDITOR TO CHAPTER XXI. (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." |