ed as com 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 fettered 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 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- (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.) 2. The force and effect of common re coveries. 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 [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 must be 25 In all recoveries it is necessary that the recoveree, or tenant seized of the to the præcipe, as he is usually called, be actually seized of the freehold, else the recovery is void.128 For all actions, to re freehold. k Salk., 571. (23) Except, perhaps, a condition for re-entry on non-payment of a rent reserved by the donor of the estate-tail. (2 Salk., 570.) 1 Pigot, 28. 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 took (24) See Co. Litt., 372; 1 W. Bl., the estate-tail by purchase, the new fee 654; 6 Scott, 719. (25) But the act did not prevent her levying 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.) See note (30), infra. (26) But a recovery suffered by a tenant for life still amounts to a forfeiture, and, in that way, to a bar of any contingent remainders immediately expectant on the life estate. (7 Scott, 815.) (27) If a tenant in tail, to whom the estate has descended ex parte maternâ, 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 conveyance 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.[CHRISTIAN.] But the law is now different; vide ante, p. 240, n. 43. (28) See Burr., 60; 3 B. & Cr., 388. But the parties to the recovery and privies are estopped by the record, as in the 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. 66 lead or de or recover 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." 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 re Stat. 4 & 5 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 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 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 præcipe, who shall vouch John Barker with Catharine Edwards, John Barker, and thereby bar his es and then to John Barker for life; re- tate-tail, and become tenant of the feemainder 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 uses. (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 uses may be re had arisen on the Statute of Frauds, 29 Car. II., c. 3, to the contrary.90 tions, as a bar by non-claim, under the old statutes, will not belong to the substituted assurance." (1 Hayes's Introduction to Conveyancing, p. 193; in which valuable work an elaborate and instructive commentary on this important statute, and a statement of the resemblances and differences between the new and old modes of assurances, will butted by parol (Gilb., Eq. Rep., 16; efficacy was attributed to them by the Dougl., 25); and until the use of a fine old law; or that the operation of a fine or recovery is otherwise limited, it re- or a recovery, as a tortious or wrongful sults to the cognizor or recoveree. All alienation, or of a fine with proclamathat is required is, evidence of what was the agreement at the time of making the assurance. If the uses were declared by deed precedent, that was binding, and could not be contradicted except by another deed, also prior to the fine or recovery; but a deed subsequent to the fine or recovery was mere evidence of the agreement, and might be rebutted even by parol evidence of a contrary be found.) agreement at the time. (Holt, 733.) The act (which, by-the-way, may be The statute of Anne has, at all events, set recommended to the student's attention up the uses by relation from the date of as a model of legislative draughtsmanthe fine or recovery, so as to give effect ship) commences in the modern fashion, to an intermediate devise of the lands, and to exclude the cognizor or recover or's wife from her dower; although even this has strangely been doubted. (See Park on Dower, 198.) with a definition of some terms employed in it. The word estate is to include any interest, charge, lien, or encumbrance, either at law or in equity, in, upon, or affecting lands, or money subject to be invested in the purchase of lands. A base fee is declared to mean exclusively the estate in fee-simple, into which an estate-tail is converted, when the issue in tail are barred; but subsequent remainder-men, &c., are not. Estate-tail, in addition to its usual meaning, is to include a base fee. Actual tenant in tail, one whose estate has not been barred, although it may have been divested or turned to a right. Tenant in tail is either an actual tenant in tail, or one who would have been such if the estate had not been converted into a base fee. (30) The student will now be prepared to understand the provisions of the "Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance," of which only a very brief summary can be attempted here: "In order to obtain a clear and correct understanding of that important portion of the act which relates to entailed estates, we should note, first, that, after the statute De Donis, tenants in tail were incompetent to aliene effectually as against the issue, remainder-man, and reversioner, until enabled The act abolishes fines and recoverby the common-law stratagem of a re- ies from the end of the year 1833, and covery, or, as against the issue only, until makes a special provision for the fulfillenabled by the statutory force of a fine, ment of covenants and agreements to with proclamations; secondly, that the make such assurances previously entered act in question abolishes both these de- into (s. 2 & 3). It then provides a remvices, without repealing the statute De edy for defects and errors of various deDonis; thirdly, that it expressly enables scriptions in fines and recoveries already tenants in tail to aliene in fee; fourthly, levied and suffered (s. to 13); and that in the case of a tenancy in tail in after providing for the custody of the remainder, expectant on a particular es- records, and declaring warranties by tate or estates of a given description, it tenants in tail to be void against the isinstitutes a functionary, styled protector sue in tail and ulterior takers, proceeds of the settlement; fifthly, that it restrains to the substituted mode of assurance. the tenant in tail, there being a protect- By sect. 14, every actual tenant in tail, or of the settlement, from aliening as whether in possession, remainder, continagainst posterior takers, without the con- gency, or otherwise, shall have full powsent of the protector; and, sixthly, that er to dispose of, for an estate in fee-simit prescribes the observance of certain ple in possession, or for any less estate, formalities, as well in regard to the the lands entailed, as against all persons alienation of the tenant in tail as in re- claiming the lands entailed by force of gard to the consent of the protector. It any estate-tail which shall be vested in is hardly necessary to state, that the or might be claimed by, or which, but contracts as well as the ordinary convey- for some previous act, would have been ances of a tenant in tail, retain whatever vested in or might have been claimed |
