Front Page Titles (by Subject) CHAPTER XXI.: OF ALIENATION BY MATTER OF RECORD. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XXI.: OF ALIENATION BY MATTER OF RECORD. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ALIENATION BY MATTER OF RECORD.
Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another; or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king’s grants. 3. Fines. 4. Common recoveries.
I. Private acts of parliament1 are, especially of late years, become a very common mode of assurance. For it may sometimes happen that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law;) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like,) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of **345]the like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate; to give its tenant reasonable powers; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred.2 This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it,(a) every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark,(b) that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear that the settlements which they make of their estate, shall be too easily unsettled when they are dead, by the power of parliament.
Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter: unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever; except those whose consent is so given or purchased, and who are therein particularly named: though it hath been holden, that, even if such saving be omitted, the act shall bind none but the parties.(c)
*[*346A law thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the other laws of the session; it hath been relieved against, when obtained upon fraudulent suggestions;(d) it hath been holden to be void, if contrary to law and reason;(e)3 and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains however enrolled among the public records of the nation, to be forever preserved as a perpetual testimony of the conveyance or assurance so made or established.4
II. The king’s grants are also matter of public record. For as St. Germyn says,(f) the king’s excellency is so high in the law, that no freehold may be given to the king, nor derived from him but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king’s grants must pass, and be transcribed and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or aught besides, are contained in charters, or letters-patent, that is, open letters, literæ patentes: so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literæ clausæ, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.
Grants or letters-patent must first pass by bill: which is prepared by the attorney and solicitor general, in consequence **347]of a warrant from the crown; and is then signed, that is, subscribed at the top, with the king’s own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, “per ipsum regem, by the king himself.”(g) Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed, “per breve de privato sigillo, by writ of privy seal.”(h)5 But there are some grants which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.
The manner of granting by the king does not more differ from that by a subject, than the construction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party; whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king’s grants, that they are made, not at the suit of the grantee, but “ex speciali gratia, certa scientia, et mero motu regis;” and then they have a more liberal construction.(i) 2. A subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted:(j) and if a feoffment of land was made by a lord to his villein, this operated as a manumission;(k) for he was otherwise unable to hold it. But the king’s grant shall not enure to any other intent than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for **348]such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant.(l) 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law: in any of these cases the grant is absolutely void.(m) For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue: neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail:(n) the grantee is therefore (if any thing) nothing more than tenant at will.(o) And to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6, that no grant of his shall be good, unless, in the grantee’s petition for them, express mention be made of the real value of the lands.
III. We are next to consider a very usual species of assurance, which is also of record; viz., a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. Its several kinds; and 3. Its force and effect.
1. A fine is sometimes said to be a feoffment of record:(p) though it might with more accuracy be called an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary *[*349to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties.(q) In its original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.
A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an ancient record of parliament,(r) 18 Edw. I., “Non in regno Angliæ providetur, vel est, aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum suum verificandum aliquod solennius testimonium producere, quam finem in curia domini regis levatum: qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causâ providebatur.” Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil(s) and Bracton(t) in the reigns of Henry II. and Hen. III. as things then well known and long established; and instances have been produced of them even prior to the Norman invasion.(u) So that the statute 18 Edw. I., called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on. And that is as follows:
1. The party to whom the land is to be conveyed or assured, commences an action or suit at law against the other, *[*350generally an action of covenant,(v) by suing out a writ of præcipe, called a writ of covenant:(w) the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value.(x) The suit being thus commenced, then follows,
2. The licentia concordandi, or leave to agree the suit.(y) For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted; but for it there is also another fine due to the king by his prerogative, which is an antient revenue of the crown, and is called the king’s silver, or sometimes the post fine, with respect to the primer fine before mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is, three-twentieths of the supposed annual value.(z)
3. Next comes the concord, or agreement itself,(a) after leave obtained from the court: which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the **351]cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas,6 or before the lord chief-justice of that court; or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem,7 which judges and commissioners are bound, by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.
By these acts all the essential parts of a fine are completed: and, if the cognizor dies the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable,(b) still the fine shall be carried on in all its remaining parts: of which the next is,
4. The note of the fine;(c) which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14.
5. The fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied.(d) Of this there are indentures made, or engrossed, at the chirographer’s office, and delivered to the cognizor and the cognizee; usually beginning thus, “hæc est finalis concordia, this is the final agreement,” and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.8
By several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin. And, first,9 by 27 Edw. I. *[*352c. 1, the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading all pleas shall cease. By 5 Hen. IV. c. 14, and 23 Eliz. c. 3, all the proceedings on fines, either at the time of acknowledgment, or previous or subsequent thereto, shall be enrolled of record in the court of common pleas. By 1 Ric. III. c. 7, confirmed and enforced by 4 Hen. VII. c. 24, the fine, after engrossment, shall be openly read and proclaimed in court (during which all pleas shall cease) sixteen times; viz., four times in the term in which it is made, and four times in each of the three succeeding terms; which is reduced to once in each term by 31 Eliz. c. 2; and these proclamations are endorsed on the back of the record.(e) It is also enacted by 23 Eliz. c. 3, that the chirographer of fines shall every term write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the sheriff of every county, who shall at the next assizes fix the same in some open place in the court, for the more public notoriety of the fine.
2. Fines, thus levied, are of four kinds. 1. What in our law French is called a fine “sur cognizance de droit, come ceo que il ad de son done;” or a fine upon acknowledgment of the right of the cognizee, as that which he hath of the gift of the cognizor.(f) This is the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowledges in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record; the livery, thus acknowledged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance, than a conveyance now originally made; for the deforciant or cognizor acknowledges, *[*353cognoscit, the right to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine “sur cognizance de droit tantum,” or upon acknowledgment of the right merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed; as the possession during the particular estate belongs to a third person.(g) It is worded in this manner: “that the cognizor acknowledges the right to be in the cognizee; and grants for himself and his heirs, that the reversion, after the particular estate determines, shall go to the cognizee.”(h) 3. A fine “sur concessit” is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be done reserving a rent, or the like; for it operates as a new grant.(i) 4. A fine “sur done, grant, et render” is a double fine, comprehending the fine sur cognizance de droit come ceo &c., and the fine sur concessit; and may be used to create particular limitations of estate: whereas the fine sur cognizance de droit come ceo, &c. conveys nothing but an absolute estate, either of inheritance or at least a freehold.(j) In this last species of fine, the cognizee, after the right is acknowledged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises.10 But, in general, the first species of fine, sur cognizance de droit come ceo, &c., is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seisin in law, without an actual livery; and is therefore called a fine executed, whereas the others are but executory.
3. We are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. The antient common law, with respect to this point, **354]is very forcibly declared by the statute 18 Edw. I., in these words:—“And the reason, why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied; unless they put in their claim on the foot(k) of the fine within a year and a day.” But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. III. c. 16, which admitted persons to claim, and falsify a fine, at any indefinite distance;(l) whereby, as Sir Edward Coke observes,(m) great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII. reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute, then made,(n) restored the doctrine of non-claim, but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years, after proclamations made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.11
It seems to have been the intention of that politic prince, king Henry VII., to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay *[*355them more open to alienations; being well aware that power will always accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis,) the statute 32 Hen. VIII. c. 36 was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail:12 unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestors, assigned to her in tail for her jointure;(o) or unless it be of lands entailed by act of parliament or letters-patent, and whereof the reversion belongs to the crown.
From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.
The parties are either the cognizors, or cognizees, and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband,) it is therefore the usual and almost the only safe method whereby she can join in the sale, settlement, or encumbrance, of any estate.13
Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood or other right of representation. Such as are the heirs general of the cognizor, the issue in tail since the statute of Henry the Eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act **356]of the principal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied.(p)
Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea; and persons, who are thus incapacitated to prosecute their rights, have five years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues.(q) And if within that time they neglect to claim, or (by the statute 4 Anne, c. 16) if they do not bring an action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of non-claim.14
But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risk defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain in statu quo; whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainderman or reversioner,(r) if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire,(s) the estate is forever barred by it. Yet where a stranger, whose presumption cannot be thus punished, officiously interferes in an estate which in no wise belongs to him, *[*357his fine is of no effect, and may at any time be set aside (unless by such as are parties or privies thereunto)(t) by pleading that “partes finis nihil habuerunt.” 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.(u) 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,(v) and create a new freehold by disseisin.15 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.16
IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed,(w) that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards 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 all 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.
1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit of action, either actual or fictitious: and in it the lands are recovered 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 student who is not yet acquainted **358]with the course of judicial proceedings; which cannot be thoroughly explained till treated of at large in the third book of these commentaries. However, I shall endeavour 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.
Let us, in the first place, suppose David Edwards(x) 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.(y) The subsequent proceedings are made up into a record or recovery-roll,(z) 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 afterwards 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, who is now the recoveree; **359]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.(a) 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 frequently thus vouched, is called the common vouchee,) it is plain that Edwards has only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor.
The recovery, here described, is with a single voucher only; 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.(b) 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 seised; 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.(c) 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 recovery in value is always ultimately awarded.17
**360]This supposed recompense in value is the reason why the issue in fail is held to be barred by a common recovery. For if the recoveree should obtain a recompense in lands from the 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.(d) This reason will also hold with equal force, as to most remaindermen 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,(e) 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 estate-tail so continues to subsist forever, the remainders or reversions expectant on the determination of such an estate-tail can never take place.18
To such awkward shifts, such subtle 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 cannot 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 seen **361]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 reversion of the crown. And by the statute 11 Hen. VII c. 20, no *[*362woman, 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.19 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 recoverys either he, or the tenant to the præcipe by him made, must vouch the remainderman in tail, otherwise the recovery is void; but if he does vouch such remaindermen, 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.(h)20
In all recoveries it is necessary that the recoveree, or tenant to the præcipe, 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 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,(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 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, yet the deed to make a tenant to the præcipe and declare the uses of the recovery shall, *[*363after 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 assurance by matter of record.
Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses 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 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 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 estatetail 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 feesimple vested in himself by the fine or recovery; yet, by the operation of this deed, he **364]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.(l) 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 Anne, 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 contrary.21
[1 ] See, in general, Com. Dig. Parliament, R. 7. Bac. Abr. Statute, F. Vin. Abr. Statute, E. 2. Cruise, Dig. title, 33, 4 vol. 509; and see ante, 1 book, 181, et seq. as to making them, and id. 59 and 85 to 92; and, as to the construing them, Co. Litt. by Thomas, 1 vol. 27 to 34.
Where a private act is obtained by a tenant in tail, it will bar the estate-tail and all remainders, and the reversion depending on it, although the persons in remainder or reversion should not give their consent to the act, (2 Cas. & Op. 400. 4 Cru. Dig. 520,) and although the rights of the remainderman were not excepted in the saving. Ambl. 697. But where a tenant for life enters into an agreement to convey the fee-simple, and a private act is passed for establishing such agreement in which is a saving of the rights of all persons not parties to the act, it will not affect the persons entitled to the remainder expectant on the life-estate. 3 Wils. 483. Private acts are construed in the same manner as common-law conveyances; and therefore, when any doubt arises as to the construction of a private act, the court will consider what was the object and intention of the parties in obtaining the act, and endeavour, if possible, to give effect to that intention. 4 Cru. Dig. 526, et vid. supra. 2 T. R. 701. It has been already observed that a saving in an act which is repugnant to the body of the act is void, (ante, 1 book, 89. 1 Co. 47, a.;) and, in like manner, it is held that the general saving clause in a private act will not control the provisions in the body of the act, but must be so expounded as to be consistent therewith, or else be void. 2 Vern. 711. Riddle vs. White, 4 Gwill. 1387. A private act may be relieved against if obtained upon fraudulent suggestions, (2 Bl. Com. 346. 2 Harg. per argum. 392. Canc. 8, 1773. M’Kenzie vs. Stuart, Dom. Proc. 1754. Biddulph vs. Biddulph, 4 Cru. Dig. 549;) and it has been held to be void if contrary to law and reason, (4 Co. 12,) and no judge or jury is bound to take notice of it unless the same be specially pleaded. But see ante, book 1, p. 86. As to the distinctions between public and private acts, see ibid.; and as to the mode of passing private bills, and the standing orders of the house of lords relating thereto, see 4 Cru. Dig. 516, 517, 518, 553-563. As to the mode of pleading a private act of parliament, see 2 Chitty on Pleading, 4 ed. 579.—Chitty.
[2 ] Tenants for life sometimes obtain private acts of parliament to enable them to charge the inheritance for the amount of necessary repairs and improvements, which must enure to the benefit of the remainderman and reversioner. But parliament, of course, is the judge whether the proposed repairs and improvements are adequately beneficial to the amount to be charged upon the estate. As to the forms to be observed in the passing of private statutes, see ante, 1 book, 181, et seq.—Chitty.
[(a) ] Lord Clar. Contin. 162.
[(b) ] Ibid. 163.
[(c) ] Co. 138. Godb. 171.
[(d) ] Richardson vs. Hamilton, Canc. 8 Jan. 1773. McKenzie vs. Stuart, Dom. Proc. 13 March, 1754.
[(e) ] 4 Rep. 12.
[3 ] It is easy enough to understand that, as to private acts, the courts adopt the construction that no merely general language shall extend to affect the right or title of strangers to the act, nor receive an interpretation which shall make it unreasonable or unjust. It is not so easy to understand how any act of king, lords, and commons, public and private, can be declared void because contrary to reason and law. See vol. 1, p. 91, and note. The authority here relied on is Lord Cromwell vs. Denny, 4 Rep. 12, which was an action of scandalum magnatum upon the statute 2 Ric. II. c. 5. The plaintiff in his count had misrecited the statute, so as to make it provide that whoever should act contrary to the prohibitions of the statute should incur the penalty. The judges thought that this meant that the innocent should be punished, and arrested the judgment on account of the misrecital. It was argued that the statute 2 Ric. II. c. 5 was a private act, of which the judges could not take notice without pleading, and they must receive it as recited. But, in answer to this, it was resolved by the court that the statute 2 Ric. II. c. 5 was not a private but a public statute. This resolution entirely disposed of the case. It is true, another resolution is added, that if it were a private act, and such as alleged by the plaintiff, it would be contrary to law and reason, and therefore void. This second resolution, founded on a mere supposition, can only be regarded as a mere extrajudicial dictum. There is no case in which an act of parliament, public or private, has ever been declared void as contrary to law and reason. The act itself must be the highest evidence of what is law; and it is plainly not competent for any court to set up its reason against the reason of the highest authority in the land. No man can doubt the power of parliament to repeal or alter Magna Charta; and if they can alter the constitution of either house, or change the succession of the crown, as they have done, surely their power over a mere private estate must be without limit. In the United States, the bills of rights contained in the various State constitutions impose real and effective limitations upon legislation; and an act may be declared void, not because it is against reason, but because it is in violation of the constitution. In most, if not all, these bills of rights is contained the provision that no man can be deprived of his property unless by the judgment of his peers or the law of the land; and by “law of the land” is meant some general law establishing a rule for the community at large. Property can only be taken for a public use, and that upon compensation made. It is not competent to the legislature to take the property of A. and give it to B. Hoke vs. Henderson, 4 Devereux, N. C. Rep. 1. Jones’s Heirs vs. Perry et al. 10 Yerger, 59. In the matter of John and Cherry Streets, 19 Wendell, 659. Wilkinson vs. Leland et al. 2 Peters, 627. Norman vs. Heist, 5 W. & S. 171. Private acts of the legislature are, however, frequently obtained to enable trustees to convert real into personal property, or, in general, to change investments; and such acts have been held to be constitutional and valid. Norris vs. Clymer, 2 Barr, 277. In these cases a change of the subject-matter, for the benefit of all interested, is effected, but no change in the right or title of any of the parties. Whenever such a change has been attempted, the act has been declared unconstitutional and void. Norman vs. Heist, 5 W. & S. 171. Bumberger vs. Clippinger, 5 W. & S. 311. Rogers vs. Smith, 4 Barr, 93. Brown vs. Hummel, 6 Barr, 86.—Sharswood.
[4 ] A recent statute (19 & 20 Vict. c. 120) will probably render private acts of parliament much less frequent than they have hitherto been. This act empowers the court of chancery, with the consent of certain parties interested, to authorize leases and sales of settled estates. When there is a tenant in tail of full age, the consent of such tenant in tail, and the first of them, if more than one, and of all persons in existence having beneficial interests prior to the estate-tail, and of all trustees having interests in behalf of unborn children prior to the estate-tail, is necessary. In all other cases, all persons whatsoever having beneficial interests under the settlement, and trustees having interests in behalf of unborn children, are required to consent. An order may, however, be made without consent, saving the rights of non-consenting parties. No application can be made under the statute when a similar application has been already rejected by parliament; nor may the court authorize any act which would not have been authorized by the settler. The working of this act remains to be seen. In many of the more usual cases of difficulty arising from the accidental omission in settlements of powers of sale or of powers to grant leases, the statute may be found to provide a simple and inexpensive remedy.—Kerr.
[(f) ] Dr. and Stud. b. 1, d. 8.
[(g) ] 9 Rep. 18.
[(h) ] Ibid. 2 Inst. 555.
[5 ] But now, under the statute 14 & 15 Vict. c. 82, which abolished the offices of the clerk of the signet and privy seal, a warrant under the sign manual may be addressed to the lord chancellor, commanding him to cause letters-patent to be passed under the great seal. This warrant must be prepared by the attorney or solicitor general, setting forth the proposed letters-patent, and must be countersigned by one of the principal secretaries of state, and sealed with the privy seal.—Kerr.
[(i) ] Finch. L. 100. 10 Rep. 112.
[(j) ] Co. Litt. 56.
[(k) ] Litt. 206.
[(l) ] Bro. Abr. tit. Patent, 62. Finch, L. 110.
[(m) ] Freem. 172.
[(n) ] Finch, 101, 102.
[(o) ] Bro. Abr. tit. Estates, 34; tit. Patents, 104. Dyer, 270. Dav. 45.
[(p) ] Co. Litt. 50.
[(q) ] Ibid. 120.
[(r) ] 2 Roll. Abr. 13.
[(s) ]L. 8, c. 1.
[(t) ]L. 5. t. 5, c. 28.
[(u) ] Plowd. 369.
[(v) ] A fine may also be levied on a writ of mesne, of warrantia chartæ, or de consuetudinibus et servitiis. Finch, L. 278.
[(w) ] See Appendix, No. IV. 1.
[(x) ] 2 Inst. 511.
[(y) ] Appendix, No. IV. 2. In the times of strict feodal jurisdiction, if a vassal had commenced a suit in the lord’s court, he could not abandon it without leave, lest the lord should be deprived of his perquisites for deciding the cause. Robertson, Cha. V. i. 31.
[(z) ] 5 Rep. 39. 2 Inst. 511. Stat. 32 Geo. II. c. 14.
[(a) ] Appendix, No. IV. 3.
[6 ] All fines acknowledged in Westminster must be acknowledged before a judge or a serjeant: if there be a judge in town, and if it be acknowledged there before any of his commissioners, it is irregular. 3 Taunt. 49. Fines and recoveries in Westminster hall of lands in Wales, or the counties palatine, are coram non judice, and therefore void. 1 Prest. Conv. 266. They may be levied in the respective local courts. See 34 & 35 Hen. VIII. c. 26. 43 Eliz. c. 15. 2 & 3 Edw. VI. c. 28. 37 Hen. VIII. c. 19. 5 Eliz. c. 7. Fines of copyhold lands should be levied in the lord’s court, and fines of land in ancient demesne in the court of the manor. 1 Cruise’s Dig. 93, b. 1 Prest. Conv. 159, 266. But the court of Common Pleas has jurisdiction over the lands as far as they are of freehold tenure, so that the lord may implead or be impleaded in that court. Ib. 167. The courts in England have no jurisdiction over lands in Ireland or the West Indies, though a fine of lands in the West Indies is sometimes levied in the courts of Westminster hall, because the colonial courts respect such fine, as a species of solemn conveyance. Ib. A fine may be levied in the King’s Bench on a writ of error from the Common Pleas, (ib. 268;) and if it be levied on a writ returnable in King’s Bench, it is voidable only, not void. Co. Read. 8. 9 Vin. Abr. Fine, 217.—Chitty.
[7 ] Or before justices of assize, in which case it is the practice, though not deemed absolutely necessary, to sue out a dedimus potestatem after the acknowledgment is taken. 1 Prest. Conv. 278. See also Jenk. Cent. 277. Co. Read. 9.—Chitty.
[(b) ] Comb. 71.
[(c) ] Appendix, No. IV. 4.
[(d) ] Ibid. 5.
[8 ] If the land lie in different counties, there must be a writ, concord, and fine for the parcels in each county, (1 Prest. Conv. 286;) and several owners of distinct tenements will not be allowed to join in the same fine, unless the lands are under the value of 200l. and there is an affidavit to that effect. But this rule does not apply in the case of coparceners, joint-tenants, and tenants in common.—Chitty.
[9 ] As to the utility of proclamations, see 1 Prest. 214, et seq. 2 Saund. index, tit. Fines. Fines are as effectual as conveyances, without proclamations; but without that ceremony they cannot operate to bar issue, nor gain any title by non-claim: therefore fines levied in courts of ancient demesne, and such other courts as have not the power of making proclamations, are good as conveyances only; for no fine but a fine with proclamations is within the statute 4 Hen. VII., which enacts that a fine with proclamations shall bar an estate-tail. 1 Salk. 339. 1 Saund. 258, a., note 8.—Chitty.
[(e) ] Appendix, No. IV. 6.
[(f) ] This is that sort of which an example is given in the Appendix, No. IV.
[(g) ] Moor. 629.
[(h) ] West. Symb. p. 2, 95.
[(i) ] West. p. 2, 66.
[(j) ] Salk. 340.
[10 ] The estate so rendered makes the conusor a new purchasor as much as a feoffment and refeoffment at common law. Thus, if before the fine the estate descended ex parte materna, it is afterwards descendible in the paternal line. 1 Salk. 337. Dy. 237, b. Co. Litt. 316.—Chitty.
[(k) ]Sur la pie, as it is in the Cotton MS., and not pur le pais, as printed by Berthelet, and in 2 Inst. 511. There were then four methods of claiming, so as to avoid being concluded by a fine: 1. By action. 2. By entering such claim on the record at the foot of the fine. 3. By entry on the lands. 4. By continual claim. 2 Inst. 518. The second is not now in force under the statute of Henry VII.
[(l) ] Litt. 441.
[(m) ] 2 Inst. 518.
[(n) ] 4 Hen. VII. c. 24. See page 118.
[11 ] This is the chief use and excellence of a fine, that it confirms and secures a suspicious title, and puts an end to all litigation, after five years. Other conveyances and assurances admit an entry to be made upon the estate within twenty years, and, in some instances, the right to be disputed in a real action for sixty years afterwards. Harg. Co. Litt. 121. a., n. 1.—Christian.
[12 ] The operation of a fine levied by a tenant in tail, when he has the reversion in himself and there are no intermediate remainders, is by letting the reversion into possession; but, if he suffers a recovery in the like case, it operates to defeat the reversion. As, for example, B. was tenant in tail by descent, with reversion to himself in fee of certain lands, of which A. (his ancestor) had granted leases, with covenants for further renewal. Now, in the first place, although the tenant in tail is empowered under the enabling statute (32 Hen. VIII. c. 28) to grant leases for twenty-one years or three lives, pursuant to the directions of the statute, he has plainly no power, either by the statute or by the common law, to bind the issue in tail to a further renewal; and, consequently, whatever covenants A. might have made to that effect, they would not be binding upon the heir in respect of the estate-tail. Secondly, with respect to the reversion in fee, which also descended at the same time from A. to B., this was hereditas infructuosa as long as the estate-tail subsisted; and although the covenants of the ancestor are said to descend as an onus upon the heir, whether he inherits any estate or not, yet they lie dormant, and are not compulsory until he has assets by descent from or through that same ancestor. But a reversion or a remainder expectant upon an estate-tail is not assets, because it is always in the power of the tenant in tail in possession to bar it at his pleasure. Let us then suppose that, under these circumstances, B. levies a fine, with proclamations, under the statute 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36, (which is said to be the mode usually resorted to in such cases when there are no intervening remainders,) for the sake of quieting the possession, or in order to prepare for making a new settlement. Now, by the operation of the fine, in the first instance, the conusor takes a fee-simple qualified, determinable upon the death and failure of issue of the tenant in tail, and which is afterwards reconveyed by the deed to lead the uses of the fine to B. himself, who consequently becomes tenant of the fee-simple qualified, together with the old reversion to himself in fee-simple absolute. But it is a maxim in law that, when two estates in succession are vested in the same person, the less estate always merges in the greater; and though an estate-tail does not merge, because of the statute de donis, which would otherwise be of no effect, there is no such exception with respect to the qualified or base fee extracted out of the estate-tail, and which therefore instantly merges in the old reversion in fee-simple; and, consequently, the hereditas infructuosa being now reduced into possession, the heir has assets by descent from the same ancestor who entered into the covenants, and is of course bound by those covenants. And so it was adjudged in the case of Kellow vs. Rawdon (Carth. 129) the reversion in fee expectant upon an estate-tail in possession was not assets; but no sooner was the estate-tail become extinct, and the reversion vested in possession in the heir by the operation of the fine, than it thereupon became assets and liable to all the encumbrances of the ancestor.
We have here, then, the principle upon which the fine operates to let the reversion into possession and to make the heir chargeable in such case, in respect of assets descended, who was not so before. But in the case of a recovery it is otherwise. Why? Because the estate conveyed by the recovery is that of fee-simple absolute, of which the recoveror acquires seisin, not by compromise, as in the case of a fine, but by adjudication of an adverse possession grounded upon an older and better title; and consequently the operation of the recovery is to defeat the reversion, together with all the mesne estates and encumbrances, precisely in the same manner as if the recoveror had actually recovered in a really adverse suit. Ritso’s Introd. 204.—Sharswood.
[(o) ] See statute 11 Hen. VII. c. 20.
[13 ] The uses of a fine, in the modern practice, are, first, to extinguish dormant titles which are barred after five years’ non-claim by the statutes 18 Edw. I. and 4 Hen. VII. c. 24. Or, secondly, to bar the issue in tail under the statutes 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. Or, thirdly, to pass the estates of femes covertes in the inheritance or freehold of lands and tenements. In the last instance, the fine is supposed by Blackstone to be binding upon the feme coverte, because she is privately examined as to her voluntary consent. But, if that were indeed the principal reason, any other mode of conveyance to which the same form of private examination were superadded would be as binding as a fine. It seems that the fine is binding in such case because it is the conclusion of a real action commenced by original writ,—without which preliminary, even at this day, a fine would be a nullity. In the ancient practice, the recovery of the estate of the wife in a real action was held to be binding notwithstanding the coverture. Upon the same principle, the fine is held to be binding in the present instance, because of the supposed depending of a real action (of which the fine is an amicable composition by agreement,) and not because of the form of private examination, which is only a circumstance in the mode of levying the fine, and a merely secondary incident introduced to prevent compulsion. And, although fines and recoveries are now no more than feigned proceedings, or, as they are usually called, common assurances, yet, in point of bar and conclusion, they are still governed by the same principles as if they were really adverse suits. Co. Litt. 121, a., n. Ritso’s Introd. 204, n.—Sharswood.
[(p) ] 3 Rep. 87.
[(q) ] Co. Litt. 372.
[14 ] Whenever a fine begins to run against a person, it will continue to run against him; and in case of estates of inheritance, either in fee, or in tail, &c., against his heirs; and in case of chattel interests, &c., against his executors, &c., notwithstanding any subsequent disability. 4 T. Rep. 301. Plowd. 356. And, therefore, if the five years commence against a person who is adult, &c., they will continue to run against that person, though he becomes imprisoned, insane, &c. And, though he dies either free from any disability or under a disability, leaving, for his heir, issue, or personal representative, a person who is either an infant under coverture, insane, or imprisoned, or though he dies intestate and no letters of administration are taken, the five years’ non-claim will continue to run. 1 Prest. on Conv. 241, 242. See further, upon the entry to avoid a fine, Adams on Ejectment, 83 to 94. 1 Saund. 319, n., b. 2 Saund. index, tit. Fine; and 1 Preston on Conv. 200, et seq.
If a lessee for life or years levies a fine, the lessor shall have five years after the death of the tenant for life, (Cro. Eliz. 254,) or after the term expires, though he may enter to avoid the fine within the five years after the last proclamation. Whaley vs. Tancred, Vent. 241. See also 3 Co. 78, b. Or if A. have two distinct estates in the same land, as an estate for life, with a remote estate of inheritance, he may enter to avoid the fine when the latter gives him a right to the possession, although the time has elapsed within which he might claim the former. See 1 Prest. Conv. 240. Shep. Touch. 34.—Chitty.
A fine and five years’ non-claim are conclusive evidence of title in the cognizee against all persons not under a legal disability; and a fine alone is sufficient to support an action of ejectment against a person who has entered during the five years without title. Jackson vs. Smith, 13 Johns. 426. Roseboom vs. Van Vechten, 5 Denio, 414.—Sharswood.
[(r) ] Co. Litt. 251.
[(s) ] 2 Lev. 52.
[(t) ] Hob. 334.
[(u) ] 5 Rep. 123. Hardr. 401.
[(v) ] Hardr. 402. 2 Lev. 52.
[15 ] So a person coming to a title which is bound by an equitable right cannot, by levying a fine, discharge his estate from the consequences of that right. 1 Sch. & Lef. 380. In the case of Lord Portsmouth vs. Vincent, (cited in Lord Pomfret vs. Lord Windsor, 2 Ves. 476,) tenants at will in possession under a letting by a receiver in the court of chancery were, by the neglect of the parties in the cause, suffered to remain in possession for a great number of years, and not called on for their rent. They levied fines, and insisted on them as a bar; but lord Hardwicke said, “No: you gained possession as tenants under the receiver of the court: you gained that possession therefore in confidence, and you shall not by means of that possession defeat the title of the persons for whom you had the possession.” And he would not suffer the fine and non-claim to be a bar. 1 Sch. & Lef. 380. So where there was tenant for life, remainder to R. P. in fee, and the tenant for life leased for her life, and died in 1799, and lessee continued in possession without paying rent till his death in 1815, when his son took possession, and continued without paying rent, and in 1817 levied a fine with proclamations, it was held that the heir of R. P., the remainderman, might maintain an ejectment against the son, without an actual entry to avoid the fine, or a notice to determine the tenancy. 3 M. & S. 271.—Chitty.
[16 ] 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, levies 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, determinable upon the failure of the issue of the person to whom the estate was granted in tail; upon which event the remainderman may enter. Mashell vs. Clarke, 2 Lord Raym. 778. Doe vs. Whitehead, 3 Burr. 704. Doe vs. Rivers, 7 T. R. 276. Doe vs. Wichelo, 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 encumbrances of the ancestors, from whom the estate-tail descended, as judgments, recognizances, and such leases as are void with respect to the issue in tail. 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 follow the lands in the hands of a bonâ fide purchasor. Pig. 120. 2 Cru. 287.—Christian.
A person holding land by deforcement cannot levy a fine so as to affect or bar a stranger to it. Lion vs. Burtris, 20 Johns. 483.—Sharswood.
[(w) ] Pages 117, 271.
[(x) ] See Appendix, No. V.
[(y) ] 1.
[(z) ] 2.
[(a) ] Page 301.
[(b) ] See Appendix, page xviii.
[(c) ] Bro. Abr. tit. Taile, 82. Plowd. 8.
[17 ] Mr. Ritso has the following note upon the distinction between single and double voucher:—
“In the case of a recovery with single voucher, supposing the præcipe upon which the recovery is grounded to be brought immediately against the tenant in tail himself, who appears and vouches over the common vouchee to warranty, it is then the estate-tail of which he is actually seised at the time which is defeated; and, consequently, remainders and reversions, together with all latent droits and interests, are not barred. Secondly, if the tenant in tail levies a fine—as he usually does—preparatory to the recovery, now, the estate-tail being thus divested by the operation of the fine, the recovery which is had thereon is no longer of the old fee-tail, but of the new fee-simple which has been extracted out of it. In this case, however, as well as in the former, a sufficient recovery cannot be had with single voucher, but only with double voucher at least, though not exactly for the same reason; for in the former case, in which the recoveree or tenant to the præcipe was actually seised at the time of an estate-tail, the recovery was necessarily of that estate and nothing more; but in the latter case, in which the estate-tail was previously divested or discontinued by the fine and turned to a droit, the recoveree or tenant to the præcipe had a fee-simple, the recovery of which is good against him by way of estoppel, (Co. Litt. 352, a.,) but upon his death may be avoided by the issue by defeating the discontinuance under which it was created. As, for example, when the tenant in tail levies a fine, it operates in the first instance as a discontinuance. Suppose, then, the estate created under the discontinuance to be immediately reconveyed to the tenant in tail himself, who thereupon suffers a recovery. Now, it is clear that this recovery is not of the estate-tail, but of the estate created under the discontinuance. By the same rule, then, if the heir in tail defeats the discontinuance, (which he may well do by action, though not by entry,) the discontinuance being defeated, the tortious fee simple which the discontinuance gave rise to is necessarily determined, and consequently the recovery avoided. Co. Litt. 389, a. But when the tenant in tail is brought in as vouchee to the warranty, as in the case of a recovery with double voucher, the heir is then barred by warranty, and so are all they in remainder or reversion. For the law always supposes, upon a principle of equity, that the first vouchee recovers other lands of equal value against the second vouchee, which descend in the same course of inheritance as the estate passed by the recovery would have descended. Upon this presumption of law, which is uniformly admitted in order to give effect to common recoveries, the warranty of the ancestor not only binds the heir and bars every latent right and interest he may have in the lands recovered, but also defeats, at the same time, the remainders over. But where the ancestor has entered into no such warranty (with double voucher) there is evidently no bar to the heir so as to preclude him from his latent droit in tail, which is above the recovery. And so, in all cases where there are several and distinct estates passed by the recovery, it is necessary that the parties should be all severally vouched to warranty in order to insure a good title.” Ritso, Introd. 207.—Sharswood.
[(d) ] Dr. and St. b. 1, Dial. 26.
[(e) ] Of Com. Recov. 13, 14.
[18 ] Fines and recoveries are now considered as mere forms of conveyances or common assurances, the theory and original principles of them being little regarded. Chief-justice Willes has declared that “Mr. Pigot has confounded himself, and everybody else who reads his book, by endeavouring to give reasons for, and explain, common recoveries. I only say this,” he adds, “to show that when men attempt to give reasons for common recoveries they run into absurdities, and the whole of what they say is unintelligible jargon 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.” 1 Wils. 73.—Christian.
[(f) ] See page 376.
[(g) ] See page 286.
[19 ] But the act does not prevent her levying a fine jointly with her husband, or after his death with the consent of the remainderman, such consent appearing on record or by deed enrolled. Cro. Jac. 474. Cruise on Recov. 160.—Chitty.
[(h) ] Salk. 571.
[20 ] If a tenant in tail, to whom the estate has descended ex parte maternâ, 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 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 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.
[(i) ] Pigot, 28.
[(j) ] Pigot, 41, &c. 4 Burr. i. 115.
[(k) ] Dyer, 18.
[(l) ] 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 is necessary, in order to bar the estate-tail of John Earker 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 pracipe 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 præcipe, 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 page viii.;) and in consequence thereof the fine and recovery are had and suffered (N° IV. and N° V.) of which this conveyance is a deed to lead the uses.
[21 ] Fines and recoveries continued, however, to flourish in unabated exuberance till the reign of William IV., when a strong impulse in favour of law-reform was communicated to the legislature. Among the many acts passed at the commencement of that reign having this object in view, none has been found more successful in operation, or has obtained greater credit as a triumph of legislative skill, than the Fines and Recoveries Act, (3 & 4 W. IV. c. 74,) of which I shall now proceed to give an account.
The first enactment is that after the 31st of December, 1833, no fine shall be levied or recovery suffered except when the preliminary procedings necessary for these purposes had been before that day actually commenced. The statute next provides for the fulfilment of covenants entered into previous to the day specified for the levying of fines and suffering recoveries, and by a legislative fiat heals all errors and defects in those already completed, thus drying up at once a prolific source of doubts and difficulties which formerly encumbered the titles of estates. It also declares that all warranties of lands made by tenants in tail after December 31st, 1833, shall be absolutely void against the issue in tail and those in remainder.
The ground being thus, as it were, cleared, a general enabling clause follows, enacting that after the 31st December, 1833, (the day named for the cessation of fines and recoveries,) every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of the lands entailed either for a fee-simple absolute, or any less estate, as against all persons claiming either under the entail or in remainder or reversion, including the crown, saving the rights of all persons having estates prior to the estate-tail so disposed of, and all others except those against whom the disposition is by the act authorized to be made. A similar power of disposition, as against remaindermen or reversioners, is given to the tenant in tail, whose estate has been converted into a base fee, so as to enlarge such base fee into a fee-simple absolute.
Thus is the tenant in tail, whether actual or one whose estate has been converted into a base fee, placed in most respects on a par with the tenant in fee-simple, as far as disposing power is concerned. But his power, as we shall now see, is attended with certain limitations. For where there is in existence any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate-tail, and created by the same settlement as created the entail, the consent of the owner of such prior estate, or the first of such owners, if more than one, is made necessary to enable the tenant in tail (unless he be entitled to the immediate reversion expectant upon his own estate-tail) to make a complete disposition of the fee. Without such consent he can but bar his own estate-tail, converting it into a base fee, and cannot bar those in remainder. The person whose consent is thus made requisite is called by the act the protector of the settlement; and he is endowed with the most absolute discrecion as to giving or refusing his consent. He is not bound by any agreement which he may have entered into to withhold his consent, nor is his office to be treated as a trust; so that no court of equity can control or interfere with him, whether to restrain or compel his consent. Under the old system of recoveries, a check similar to that which is now secured by the office of protector arose from the necessity of obtaining the concurrence of the person entitled to the immediate freehold prior to the estate-tail, in order to make a tenant to the præcipe or writ of entry: this was found to operate in restraint of imprudent alienation, and to favour the retention of estates in one family through a succession of generations. The new plan has this advantage over the old. The owner of the prior estate is now only a consenting, not a conveying, party: he may therefore concur in barring the estate without affecting the powers or interests incident to his own estate, and without letting in the encumbrances of the remainderman, which in some cases was a consequence of the old system.
Having imparted a general disposing power, under such conditions as we have seen, to the tenant in tail, the statute next enacts that the disposition shall be effected by some one of the assurances (not being a will) by which the same disposition might have been made if the tenant in tail had been tenant in fee-simple. But such disposition (except the land be of copyhold tenure) must be made or evidenced by deed; and no disposition resting merely in contract, notwithstanding it be evidenced by deed, shall be good under the act, either at law or in equity. In this respect, therefore, as under the old law, the heir in tail and remainderman are more favoured than the heir-at-law of tenant in fee-simple; whom the ancestor’s contract binds, and whom he may bar by his will.
No assurance will have any operation under the act (except a lease at rack-rent for less than twenty-one years) unless enrolled in chancery within six calendar months after its execution. The consent of the protector may be given by the same deed, or by a separate deed, provided it be executed on or before the day when the disentailing deed is executed; and the separate consenting deed must be likewise enrolled at or before the time when the other deed is enrolled. A tenant in tail of lands held by copy of courtroll, if his estate be a legal one, and not merely an estate in equity, must dispose of his lands by surrender in the usual way. If, however, his estate be but an equitable one, he may dispose of it either by surrender or by deed: and, if by deed, such deed must be entered on the court-rolls, as must also the deed by which the protector (if there be one) consents to the disposition. But if the disposition be made by surrender, the protector may give his consent to the person taking the surrender. The statute further enables the commissioners of bankruptcy to dispose by deed of the lands of a bankrupt tenant in tail to as large an extent as the bankrupt himself might have done.
One of the purposes to which fines were formerly applied was to pass the estates and interests of married women, which could not, on account of the incapacity arising from coverture, have been otherwise effectually bound. The act, therefore, provides that it shall be lawful for every married woman (in every case except that of being tenant in tail, which is otherwise provided for by the act, as we have already seen) by deed to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any such lands or money, and to release and extinguish any power which she may have over such lands or money, as effectually as though she were a feme sole. But her husband must concur in the deed, which must also be produced and acknowledged by her before a judge of one of the superior courts of Westminster, or a county-court judge, (19 & 20 Vict. c. 108, s. 73,) or before one of the commissioners appointed by the lord chief-justice of the Common Pleas for the purpose of taking such acknowledgments. On this occasion she is examined, apart from her husband, as to her knowledge of the deed, and whether she voluntarily and freely consents to it,—a ceremony which, as we have previously seen, was used when a married woman was cognizor in a fine. If the disposition intended to be made be of lands of copyhold tenure to which the married woman is entitled for an estate at law, it must be done by way of surrender into the hands of the lord; an equitable estate in copyhold may be disposed of in the same way, or by deed. Whenever it is done by surrender, the married woman is to be separately examined, by the person taking the surrender, as to the voluntary nature of the act.
Such are briefly the provisions of this important statute, by which estates-tail may now be absolutely alienated or barred and converted into estates in fee, and by which the interests of married women may be passed. That which was formerly effected by a series of tedious forms, with perpetual danger of errors or omissions which might vitiate the whole transaction, is now accomplished by a simple deed, the same in form as that by which any other owner might convey his interest, or, in cases of copyhold tenure, by surrender,—the only additional requisites being that these acts be done with the consent of certain proper parties, who are clearly defined, that the deed be enrolled, and, in the case of a married woman, that it be acknowledged by her in the manner prescribed by the act.—Kerr.