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runt. 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, and create a new freehold by disseizin." 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. 20

recovery.

IV. The fourth species of assurance, by matter of record, is IV. Common a common recovery; concerning the original of which it was formerly observed,y that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain, and afterward 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 remainders and reversions expectant thereon. I am now, therefore, only to consider, first, the nature of a common recovery; and, secondly, its force and effect.*

ture of a common re

1. And, first, the nature of it; or what a common recovery 1st. The n 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 re- covery.

u 5 Rep., 123. Hardr., 401. * Hardr., 402. 2 Lev., 52.

(18) See 7 Scott, 59; 1 Cr. & J., 535.

(19) This tortious act of the termor was a forfeiture of his term, which the reversioner might have taken advantage of (within five years) or not as he pleased. If he did not accept the forfeiture, the term subsisted for all purposes, and he had a new right at the expiration of the term; and in the mean time, if he could have procured the term to be vested in a trustee for himself, might have used it for his defense against the disseizor. (1 Wms. Saund., 319; 4 Per. & Dav., 285.)

y Pages 117, 271.

terminable upon the failure of the issue
of the person to whom the estate was
granted in tail; upon which event the
remainder-man may enter. (2 Lord
Raym., 778; 3 Burr., 704; 7 T. R., 276;
8 T. R., 211.) If tenant in tail, with an
immediate reversion in fee, levies a fine,
the base fee merges in the reversion,
and he thus gains a fee-simple, which
will become liable to all the encumbran-
ces of the ancestors from whom the es-
tate-tail descended; as judgments, recog-
nizances, and such leases as are void with
respect to the issue in tail. This has
frequently happened in practice, from
such a person being ill advised to levy a
fine, instead of suffering a recovery. (5
T. R., 108; 1 Cru., 274.) A recovery
suffered by any tenant in tail lets in all
the encumbrances created by himself,
which were defeasible by the issue in
tail, and after the recovery they will fol-
low the lands in the hands of a bona fide
purchaser. (Pig., 120; 2 Cru., 287.)-

(20) It is not necessary to be in possession of the freehold in order to levy a fine; but if any one entitled to the inheritance, or to a remainder in tail, levied a fine, it will bar his issue and all heirs who derive their title through him. (Hob., 333.) A fine by tenant in tail does not affect subsequent remainders, but it creates a base or qualified fee, de- [CHRISTIAN.] *See ante, p. 348, n. *.

covered 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 its form and method will not be easily understood by the [358] student who is not yet acquainted with the course of judicial proceedings, which can not be thoroughly explained till treated of at large in the third book of these Commentaries. However, I shall endeavor to state its nature and progress as clearly and concisely as I can; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted.

Single voucher.

Let us, in the first place, suppose David Edwardsz 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 its 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 recovery roll,b 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 afterward 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, [359] who is now the recoveree; 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 crier of the court (who, from being freSee Appendix, No. V. b § 2. © Page 301

a § 1.

quently 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 seizin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conIveyance in fee-simple, from Edwards, the tenant in tail, to Golding, the purchaser.

voucher.

The recovery here described is with a single voucher only; Double but sometimes it is with double, treble, or further 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 seized; 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 vouchee, who recovers the like against Morland, the common vouchee, against whom such ideal re- [360] covery in value is always ultimately awarded.

recompense

vouchee.

This supposed recompense in value is the reason why the Supposed issue in tail is held to be barred by a common recovery. For, from the if the recoveree should obtain a recompense in lands from the common 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 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, 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 transferred, and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs and assigns; and, as the

d See Appendix, page xviii.

• Bro. Abr., tit. Taile, 32. Plowd., 8.

f Dr. & St., b. 1, dial. 26.

Of Com. Recov., 13, 14.

estate-tail so continues to subsist forever, the remainders or reversions expectant on the determination of such estate-tail can never take place."1

(21) Fines and recoveries are now new estate, and not of that of which he considered as mere forms of conveyances had been disseized; and the recompense or common assurances, the theory and must have followed the new estate, and original principles of them being little not the old one, of which, therefore, it regarded. Chief-justice Willes has de- was no bar. (Taltarum's case, 12 Edw. clared, that "Mr. Pigot has confounded IV.; 3 Rep., 58.) And where the tenhimself and every body else who reads ant was seized of a life estate, with a rehis book, by endeavoring to give reasons mainder to himself in tail, separated from for and explain common recoveries. I his life estate by intermediate estates, only say this," he adds, "to show that his recovery with single voucher was when men attempt to give reasons for no bar of the estate-tail. (6 Br., P. C., common recoveries, they run into ab- 338.) For these reasons, and to avoid surdities, and the whole of what they the possibility of any alteration having say is unintelligible jargon and learned taken place in the estate of the tenant in nonsense. They have been in use some tail, recoveries with single voucher fell hundreds of years, have gained ground into disuse, except under particular cirby time, and we must now take them cumstances. (See Fearne, Posth. W., as they really are, common assurances." 335.) With double voucher the case was (1 Wils., 73.)-[CHRISTIAN.]

The judges did not allow any criticism of the theory of common recoveries, that went the length of destroying their efficacy in toto; but no reasoning upon their rationale, if it stopped short of that boldness, was disregarded; and hence arose a variety of nice distinctions, some of which, as to voucher, are important to be understood.

very different. Here the tenant in tail had either never become actually seized, or he had transferred the seizin to another, that he might become tenant to the præcipe. The action being brought against the tenant of the freehold, he vouched the tenant in tail, who appearing and confessing the warranty, and undertaking to defend, was held to become, in effect, the defendant or tenant of the The writ was usually one of entry sur freehold (so much so that he might take disseizin en le post, which supposed a a release from the demandant (Co. Litt., disseizin, and that the tenant had no en- 265, b)); but tenant in a much more try into the land but after the disseizin, extensive sense he would have been if without stating more particularly the the action had been commenced against origin of his title, and therefore allowing him. For by his warranty he was bound the tenant to vouch at large. (2 Inst., to make good the estate warranted out 154; Booth on Real Actions, 176.) When of every estate or right which was in the action was brought against the ten- him; and by submitting to defend in ant in tail himself, he vouched the com- this action, he, in effect, submitted every mon vouchee, as having warranted to estate and right which he had (except him the title under which he was in pos- contingent and future estates) to the session, and, as the demandant asserted, judgment. Having thus become de wrongfully. The vouchee, by confessing fendant of all his estates and rights, he the warranty, and making default, bound vouched the common vouchee to defend himself to give to the tenant in recom- his title to them all; who, by underpense other tenements to be held for taking to do so and failing, occasioned, the same estate or estates as those lost in the first place, a judgment to go for by the tenant, that is to say, the estate the demandant in fee-simple, and, in the under which he was seized when the next place, a judgment against himself, action was brought. This estate, in the for recompense in respect of all the escase of a tenant in tail in possession, with tates warranted by him, i. e., all the esremainders or reversion over, was the tates and rights which the tenant in tail estate-tail, and also the remainders or re- had. (Salk., 571; 3 Rep., 5; Plowd., version, which obviously depended on 2.) Treble voucher was necessary, if the same title as the entail; and these at all, where a tenant in tail had created were barred by the recovery with single an entail derived out of his own estate voucher. But if the tenant had been in another, and both estates, being in previously disseized, and had reacquired the seizin, without being remitted to his old estate, his voucher was necessarily founded on a supposed warranty of the

different persons, were to be barred. Here it was prudent to vouch the puisne tenant in tail; and as the recompense recovered under his voucher would not

ed as com

ances.

[361]

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 unriveting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth; but, while we applaud the end, we can not 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 Recoveries mode of conveyance, by which tenant in tail is enabled to now regard. aliene his lands." But, since the ill consequences of fettered mon assurinheritances are now generally seen and allowed, and, of course, the utility and expedience of setting them at liberty are appar ent, 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, but also by the precedent of the statutei 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 enrollment.

See page 376.

follow the original estate-tail, it was of course necessary that the original tenant in tail should be vouched; and the regular course was, that the puisne tenant in tail, being vouched, should vouch the tenant of the original estate-tail, and that he should vouch the common vouchee. But it is not clear whether a voucher of the two tenants in tail jointly, followed by a joint voucher by them of the com

i See page 286.

mon vouchee, would not have been suf-
ficient. (See 1 Prest., Conv., 127.)

(22) "The truth is, that, like many
other fictions of law invented for the
purpose of promoting the enjoyment of
property, the machinery will not bear a
very critical examination; but, being
once adopted, it is maintained for the
benefit which it is found to confer."
(Per Lord Lyndhurst, C., 1 Phill., 16.)

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