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

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(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.]

very different.

Here the tenant in tail The judges did not allow any criticism had either never become actually seized, of the theory of common recoveries, that or he had transferred the seizin to anwent the length of destroying their effi- other, that he might become tenant to cacy in toto; but no reasoning upon their the præcipe. The action being brought rationale, if it stopped short of that bold- against the tenant of the freehold, he ness, was disregarded; and hence arose vouched the tenant in tail, who appeara variety of nice distinctions, some of ing and confessing the warranty, and unwhich, as to voucher, are important to dertaking to defend, was held to become, be understood.

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 bonnd 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 different persons, were to be barred. the seizin, without being remitted to his Here it was prudent to vouch the paisne old estate, his voucher was necessarily tenant in tail; and as the recompense founded on a supposed warranty of the recovered under his voucher would not

ances.

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 feitered mon assurinheritances are now generally seen and allowed, and, of course, the utility and expedience of setting them at liberty are appar. [361] ent, it hath often been wished that the process of this convey. ance was shortened, and rendered less subject to niceties, 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. b See page 376.

i See page 286. follow the original estate-tail, it was of mon vouchee, would not have been sufcourse necessary that the original tenant ficient. (See 1 Prest., Conv., 127.) in tail should be vouched; and the regular course was, that the puisne tenant (22) “The truth is, that, like many in tail, being vouched, should vouch the other fictions of law invented for the tenant of the original estate-tail

, and that purpose of promoting the enjoyment of he should vouch the common vouchee. property, the machinery will not bear a But it is not clear whether a voucher of very critical examination; but, being the two tenants in tail jointly, followed once adopted, it is maintained for the by a joint voucher by them of the com- benefit which it is found to confer."

(Per Lord Lyndhurst, C., 1 Phill., 16.)

common re

2. The force 2. The force and effect of common recoveries may appear, and effect of

from what has been said, to be an absolute bar, not only of all coveries. 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 [362] 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 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.k27 Recoveree

In all recoveries it is necessary that the recoveree, or tenant seized of the to the pracipe, as he is usually called, be actually seized of the freehold, else the recovery is void. For all actions, to reSalk., 571.

| Pigot, 28.

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must be

freehold

(23) Except, perhaps, a condition for suffer a recovery, and declare the uses re-entry on non-payment of a rent re- to himself in fee, the estate will descend served by the donor of the estate-tail. to an heir on the part of the mother, (2 Salk., 570.)

even if he had the reversion in fee from

his father, and vice versa; but if he took (24) See Co. Litt., 372; 1 W. Bl., the estate-tail by purchase, the new fee 654; 6 Scott, 719.

will descend to the heirs general. (5

T. R., 104.) If, then, a person, who has (25) But the act did not prevent her inherited an estate-tail from his mother, levying a fine jointly with her husband, wish to cut off the entail, and to make or after his death with the consent of the the estate descendible to his heirs on remainder-man, such consent appearing the part of the father, after the recovery on record, or by deed enrolled. (Cro. he ought to make a common conveyance Jac., 474; Cruise on Recov., 160.) See to trustees, and to have the estate renote (30), infra

conveyed back by them, by which means

he will take the estate by purchase, (26) But a recovery suffered by a ten- which will then descend to his heirs ant for life still amounts to a forfeiture, general.—[Christian.] But the law and, in that way, to a bar of any contin- is now different; vide ante, p. 240, n. 43. gent remainders immediately expectant on the life estate. (7 Scott, 815.) (28) See Burr., 60; 3 B. & Cr., 388.

But the parties to the recovery and priv(27) If a tenant in tail, to whom the ies are estopped by the record, as in the estate has descended ex parte maternă, case of a fine, from taking advantage of

cover the seizin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold can not 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 ancient rule of law,m 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 regularly entered, on record, [363] yet the deed to make a tenant to the præcipe, and declare the uses of the recovery, shall, after a possession of twenty years, be sufficient evidence, on behalf of a purchaser 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 deeds to lead, or to declare, the uses of fines, and of recoveries. Clare the For if they be levied or suffered without any good considera- uses of fines tion, and without any uses declared, they, like other convey- ies: ances, enure only to the use of him who levies or suffers them.n 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 direcion 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 rePigot, 41, &c. 4 Burr., 115.

Dyer, 18.

or recover

66

m

this defect; and thus a recovery may be toppel; and, as there could be no war.
operative without a good tenant to the ranty in a recovery, its operation in this
præcipe. (2 N. R., 491.) But the issue respect was not so strong as that of a
in tail of the recoveror, claiming per fine. (Vide ante, p. 354, n.)
formam doni, are not bound by this es-

version 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 [ 364] in himself by the fine or recovery; yet, by the operation of

this deed, he becomes a mere instrument or conduit-pipe, seized only to the use of B., C., and D., in successive order; which use is executed immediately, by force of the Statute of Uses.k Or, if a fine or recovery be had without any previous settlement, and a deed be afterward 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 parStat. 4 & 5 ticular uses. For, by statute 4 & 5 Ann., c. 16, indentures to Ann., c. 16.

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

This doctrine may perhaps be more bar the estate-tail of John Barker, and clearly illustrated by example. In the the remainders expectant thereon, that deed or marriage settlement in the Ap- a recovery be suffered of the premises; pendix, No. II., \ 2, we may suppose and it is thought proper (for, though the lands to have been originally settled usual, it is by no means necessary, see on Abraham and Cecilia Barker for life, Forrester, 167) that, in order to make remainder to John Barker in tail, with a good tenant to the freehold or tenant divers other remainders over, reversion to the præcipe, during the coverture, a to Cecilia Barker in fee; and now in- fine should be levied by Abraham, Cetended to be settled to the several uses cilia, and John Barker; and that the therein expressed, viz., to Abraham recovery itself be suffered against this and Cecilia Barker till the marriage of tenant to the pracipe, who shall vouch John Barker with Catharine Edwards, John Barker, and thereby bar his esand then to John Barker for life ; re- tate-tail, and become tenant of the fee. mainder to trustees, to preserve the simple by virtue of such recovery; the contingent remainders; remainder to uses of which estate so acquired are to his wife Catharine for life, for her joint- be those expressed in this deed. Acure; remainder to other trustees, for a cordingly, the parties covenant to do term of five hundred years; remainder these several acts (see page viii.); and to the first and other sons of the mar- in consequence thereof, the fine and riage in tail; remainder to the daugh- recovery are had and suffered (No. IV. ters in tail; remainder to John Barker and No. V.), of which this conveyance in tail; remainder to Cecilia Barker in is a deed to lead the uses. fee. Now it is necessary, in order to

(29) These doubts might have been trust, and was satisfied by a subsequent safely left to the judges. The Statute declaration. (3 Ves., 707.) But it is of Frauds merely required that declara- very doubtful whether this section of tions of trusts or confidences should be the statute extended to

(1 P. manifested and proved by writing signed Wms., 112.) However this may be, it by the party enabled to declare such is clear that resulting nses may be re

uses.

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