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against Morland, the common vouchee, against whom such ideal recovery in value is always ultimately awarded.
This supposed recompense in value is the reason why The reasoning the issue in tail is held to be barred by a common recovery. doctrine of re
upon which the For, if the recoveree should obtain a recompense in lands coveries was forfrom the common vouchee, (which there is a possibility in founded. 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(c). This reason will also hold with equal force, as to most remainder-men 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 Pigot 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 estate-tail is gone from the recoveree, yet it is not destroyed, but only trunsferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs and assigns: and, as the estate-tail so continues to subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take placet.
To such awkward shifts, such subtile refinements, and they are now such strange reasoning, were our ancestors obliged to have considered as a
mere formal recourse, in order to get the better of that stubborn statute mode of con
veyance. (c) Dr. & St. b. 1, Dial. 26,
(d) Of Com. Recov. 13, 14.
+ Mr. Christian observes, that “fines 'only say this,' he adds, 'to shew that and recoveries are now considered as when men attempt to give reasons for mere forms of conveyances or common common recoveries, they run into abassurances, the theory and original prin- 'surdities, and the whole of what they ciples of them being little regarded. “say is unintelligible jargon and learnChief Justice Willes has declared, that Sed nonsense. They have been in use "Mr. Pigot has confounded himself and some hundreds of years, have gained every body else who reads his book, 'ground by time, and we must now by endeavouring to give reasons for 'take them, as they really are, comand explain common recoveries. I mon assurances.' (1 Wils. 73).”
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 common-wealth: 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 [ * 361 ] seen *and 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 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 possibily 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, and the decisions of our own courts of justice, which allow a tenant in tail (without fine or recovery) to appoint his estate to any charitable use (e), but also by the precedent of the statute (f) 21 Jac. I. c. 19, which, in case of a bankrupt tenant in tail empowers 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 enrolment. 2. The force and effect of common recoveries may appear, 2. Their force
. from what has been said, to be an absolute bar, not only of and effect. 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 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 *woman, after her husband's death, shall [ *362 ) 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 remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, 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 against the tenant to the præcipe, it is as effectual to bar the estate-tail as if he himself were the recoveree (f) +.
(f) Salk. 571.
+ Mr. Christian observes, that, “if a self in fee, the estate will descend to an tenant in tail, to whom the estate has heir on the part of the mother, even if descended ex parte materna, suffers a he had the reversion in fee from his recovery, and declares the uses to him- father, and vice versa; but if he took
seised of the freehold.
The tenant to In all recoveries it is necessary that the recoveree, or tenthe must be actually ant to the precipe, as he is usually called, be actually seis
ed of the freehold, else the recovery is void (g). For all actions to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its 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 and conformity to the antient rule of law (h), 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 ;—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 regu
larly entered, on record, yet the deed to make a tenant to [ *363 ] the præcipe, and declare the uses of the recovery, shall, *af
ter 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.
(g) Pigot, 28.
(h) Pigot, 41, &c. 4 Burr. I. 115.
the estate-tail by purchase, the new recovery he ought to make a common
Before I conclude this head, I must add a word concern- of deeds to lead, ing deeds to lead, or to declare, the uses of fines, and of or to declare,
the uses of fines recoveries. For if they be levied or suffered without any and recoveries. good consideration (6), and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them (i). And if a consideration appears, yet, as the most usual fine,“ sur cognizance de droit, come “ ceo &c.” 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 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, after making the settlement proposed, covenants to levy a fine (or if there be any intermediate remainders, to suffer a recovery) to E., and directs 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, hath a fee simple vested in himself by the fine or recovery; yet, by the operation of this deed, he be
(i) Dyer, 18.
(6) See ante, p. 296, note (1), and p. 339, note (50) to chapter 20.