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 fet["361] tered inheritances are now generally 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 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, 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 (f), but also by the precedent of the statute (g) 21 Jac. I. c. 19, which, in case of the 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, 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 the king, shall bar such estate-tail, or the remainder or rever sion 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 (21). And by statute 14 Eliz. c. 8. no tenant (f) See pag. 376. body else who reads his book, by endeavouring to give reasons for and explain common recoveries. I only say this," he adds, "to shew that when men attempt to give reasons for common recoveries, they run into absurdities, and the whole of what they say is unintelligible jar (g) See pag. 286. gon 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." I Wils. 73. (21) But the act does not prevent her levy 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 praecipe 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 praecipe, it is as effectual to bar the estate-tail as if he himself were the recoveree (h) (22). In all recoveries it is necessary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seised of the freehold, else the recovery is void (i). 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 fabulae, 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 praecipe, is removed by the provisions of the statute 14 Geo. II. c. 20. which enacts, with a retrospect and conformity to the ancient rule of law (j), 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 praecipe;-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 praecipe, and declare the uses of the recovery, shall, *after a possession of twenty years, be sufficient [*363] 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 assurance by matter of record. Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the use 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 (k). 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 designa (h) Salk, 571. (i) Pigot, 28. ing a fine jointly with her husband, or after his death with the consent of the remainder-man, such consent appearing on record, or by deed enrolled. Cro. Jac. 474. Cruise on Recov. 160. (22) If a tenant in tail, to whom the estate has descended ex parte materna, suffer a recovery, and declare the uses to himself in fee, the estate will descend to an heir on the part of the mother, even if he had the reversion in fee from his father, and vice versa; but if he (1) Pigot, 41, &c. 4 Burr. 1. 115. took the estate-tail by purchase, the new fee will descend to the heirs general. 5 T. R. 104. If then a person, who has inherited an estate-tail from his mother, wish to cut off the entail, and to make the estate descendible to his heirs on the part of the father, after the recovery he ought to make a common convey. ance to trustees, and to have the estate reconveyed back by them, by which means he will take the estate by purchase, which will then descend to his heirs general. tions 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; that 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 [*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 (1). Or, if a fine or recovery be 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 its 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 any doubts that had arisen on the statute of frauds 29 Car. II. c. 3. to the con trary (23). (1) This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the Appendix, N° 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 of John Barker with Katherine Edwards, and then to John Barker for life; remainder to trustees to preserve the contingent remainders; remainder to his wife Katherine for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to the first and other sons of the marriage in tail; remainder to the daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it (23) By the statute of 7 Geo. 1V. c. 45, a person who would be entitled to an estate-tail in lands directed to be purchased under a settlement or will, may elect to take the money without having it so invested. But, where a recovery would have been necessary to bar a remainder-man's chance of succession, in case the money had been laid out in lands, a court of equity, if the funds are under its control, will not allow them to be paid over to the tenant in tail, until such time as he might 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 praecipe, 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 praecipe, who shall vouch John Barker, and thereby bar his estate-tail, and become tenant to 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 N° V.) of which this conveyance is a deed to lead the uses. actually have suffered a recovery; that is to say, he cannot get the money unless he should be living on the second day of the ensuing term, when he has presented his petition during the sittings out of term; (Ex parte Bennett, and Ex parte Dollman, 6 Ves. 116); or, if the application be made in term, unless sufficient time remains after the presentation of the petition, for a recovery to have been completed in that term. (Ex parte Frith, 8 Ves. 609). And before an order under the statute CHAPTER XXII. OF OF ALIENATION BY SPECIAL CUSTOM (1). We are next to consider assurances by special custom (2), obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in ancient demesne, or in manors of manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold (a). Nor are they transferable by matter of record, even in the king's courts, but only in the court baron of the lord (3). The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds (b): but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their consequences. Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will; and the like. The process, in most manors, is, that *the tenant comes to the steward, either in court [*366] (or if the custom permits, out of court), or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons (a) Litt. 74. is made, the court always directs a reference to the Master, to inquire whether the parties have in any manner encumbered, or settled their interests in the money. (Exparte Hodges, 6 Ves. 576. Green v. Stephens, 17 Ves. 79). It has also been determined, that the act applies only when the right is clear and indisputable; and that, where there is any question as to the right, the court is not, upon an ex parte petition, to enter into that question, in the absence of any of the parties interested. (Ex parte Sterne, 6 Ves. 157. Ex parte Rees, 3 Ves. & Bea. 11). (1) There being no copyholds in New-York, this chapter is not applicable here, nor, it is believed, in any of the states of the U. S. (2) See in general, Com. Dig.; Bac. Ab.; Vin. Ab. Copyhold; Cru. Dig. index, Copy hold; 1 Prest. on Conv. index, Copyhold; Watkins on Copyhold; and Scriven on Copy hold; 2 Saund. index, tit. Copyhold, and tit. Surrenders; and 1 Thomas Co. Lit. 653 to 676. (6) Moor. 637. (3) Littleton, (sect. 76), was probably our author's authority for the doctrine stated in the text. Littleton says, "tenants by copy of court roll shall neither implead nor be impleaded for their tenements by the King's writ. But, if they will implead others for their tenements, they shall have a plaint entered in the lord's court." But, in Widdowson v. Earl of Harrington, (1 Jac. & Walk. 549), the Master of the Rolls observed, "with respect to the manner of proceeding for the recovery of copyholds, it is said by counsel, that it can be only by plaint in the lord's court; but, that is quite a mistake. There was a time when it was doubted whether you could proceed by the King's writ, whether you could bring an ejectment for a copyhold. But all that has given way, and the King's courts are now open to ejectments for copyholds, in the same way as for freeholds. What is said by Littleton, (sect. 76), applies generally to all actions, but we know that, at this day, it is not true to that extent." And see post, p. 370. and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender, in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use (who is sometimes, though rather improperly, called the surrenderee), to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued (4). And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty (5). In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord.. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fidu[*367] ciarium, for which "there was no remedy at law, but only by sub pæna in chancery (c). When therefore the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant's will, the chancery enforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV. (d), was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; "quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quae saltem coram duobus vasallis solemniter fieri debet (e):" and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that had there been no other (e) Feud. l. 2, t. 2. (5) Femes-covert and infants may be admitted by their attorney or guardian, and in default of their appearance, the lord may appoint a guardian or attorney for that purpose. If the fines are not paid, the lord may enter and receive the profits till he is satisfied, ac counting yearly for the same upon demand of the person or persons entitled to the surplus, but no forfeiture shall be incurred by infants or femes-covert for not appearing, or refusing to pay fines. 9 Geo. I. c. 29. |