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For further securing the mortgage

day of

is hereby acknowledged) He the said (assignor of term], at the request and by the direction of the said [vendor], and upon the nomination and appointment of the said [purchaser], (testified by their severally being parties to and sealing and delivering these presents), HATH bargained, sold, assigned, transferred and set over, and by these presents DOTH bargain, sell, assign, transfer and set over unto the said [assignee of term], all such and so many and such part and parts of the said messuages or tenements, hereditaments and premises by the said indenture of the assigned to the said [assignor of term], his executors, administrators, and assigns, for the residue then to come of the said term of 500 years, as are herein-before mentioned to be hereby released, with their appurtenances, and all the estate, right, title, interest, term and terms for years, property, possibility, claim and demand whatsoever, both at law and in equity, of him the said [assignor of term], of, in, to, or out of, or upon the same premises, and every of them, and every part and parcel thereof; TO HAVE AND TO HOLD the said hereditaments, and all and singular other the premises herein-before money and in- assigned or expressed and intended so be, with their appurtenances, unto the said [assignee of term], his executors, administrators and assigns, for all the residue and remainder now to come and unexpired of the said term of 500 years; Nevertheless in trust for the said [vendor], his executors, administrators and assigns, and to assign and dispose of the same as he or they shall from time to time direct or appoint, for further and better securing the payment to the said [vendor] of the said sum of 20007., and interest, intended to be secured by these presents; and from and after payment of the said sum of 2000l., and the interest thereof, and in the mean time subject thereto, UPON TRUST to permit the residue and remainder of the said term of 500 years to wait upon and attend the reversion, freehold and inheritance of the premises therein comprised, according to the uses and estates hereby created or intended so to be, and to be subservient thereto, and to protect the same from all mesne incumbrances (if any such there be); And the said [assignor of term] DOTH for himself, his heirs, executors, and administrators, covenant and declare with and to the said [assignee of term],

terest;

and then to attend the inheritance.

Covenant

against incumbrances by assignor of

term.

his executors, administrators, and assigns, by these presents, that he the said [assignor of term] HATH not at any time heretofore, made, done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to any act, deed, matter, or thing whatsoever, whereby or by reason or means whereof the messuages and other hereditaments herein-before assigned or expressed and intended so to be, are, is, can, shall or may be impeached, charged, affected or incumbered in title, estate, or otherwise howsoever, or whereby or by reason or means whereof the said term of 500 years is forfeited, merged, extinguished or otherwise become void or voidable. IN WITNESS, &c. (a)

(a) Mr. Coventry in his Treatise on the Stamp Laws, p. 71. referring to the subject of "Mortgagor and Mortgagee," and of " Release and Assignment of Term," makes the following remarks: "It also seems clear that if the mortgagor and mortgagee join in conveying the same land to one or more joint purchasers, only one duty will be incurred. So if tenant for life and the person in remainder concur in a conveyance of their several interests to one or more purchasers, one duty only should be due; this was stated to be the constant practice at the Stamp Office, by Sergeant Rooke, in the case before referred to, (Baker v. Jardine, 13 East, 236.) But if a release in fee contain also an assignment of an attendant term, or if a conveyance of freehold contain a covenant to surrender copyhold lands, it may be, and I believe has been lately, seriously doubted, whether additional duties are not incurred. I cannot subscribe to an affirmative view of that question unhesitatingly, because the Act says, when any lands, or other property generally, shall be purchased of several owners, and conveyed by one deed the ad valorem duty shall attach on the aggregate amount.' This, it is true, applies simply to the ad valorem duty, but that cannot be considered as a cipher, so as to render the deed not otherwise charged, for it certainly is charged, and that according to its value."

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XIV.

CONVEYANCE BY LEASE AND RELEASE (a) of Freehold Messuages, &c. to Uses to bar Dower, and COVENANT TO SURRENDER Copyholds. Vendor, Tenant in Tail in Possession, to Purchaser. Vendor's Wife joins to extinguish her Dower, and Vendor covenants to procure the Deed to be acknowledged by his Wife.

THIS INDENTURE, made the day of, in the year of our Lord 1838, BETWEEN [vendor], &c. (the eldest son

(a) In the first sect. of the Introduction, antè p. 11, a slight sketch of Fines and Recoveries has been given; and at p. 13, some notice of the Act for their abolition. It will now be proper to refer more particularly to that act, and point out how, and to what extent, the forms of assurances of real property are affected by its provisions.

By a common recovery, the vendor in the case stated in the text, namely, that of tenant in tail in possession might have acquired the fee simple, before the passing of the act 3 & 4 W. 4. c. 74.; and it may be as well in this place, before more immediately referring to that important statute, to enter into a review of the old law.

A recovery has been defined to be a fictitious suit carried on to judgment, 2 Bl. Com. ch. 21. Cru. Dig. tit. Recov. 36 Touchst. ch. 3. Pigot on Recov. By the ancient common law, the party who had the immediate freehold, or freehold in possession, was bound to answer to the claims of all strangers, and against him the writ of præcipe, or writ of præcipe quod reddat as it was termed (from those words being the initial, or most operative words of the writ) was brought when a party claimed the lands; and unless the party against whom the writ was brought had the freehold in possession in him the claimant had no title to recover the possession from him. So that, until the recent statute, no recovery could be suffered, unless the recoveree had the freehold in possession in him at the time, because the whole efficacy of it was founded on the præcipe, which, as before observed, could be sued out only against the tenant of the freehold.

In the case in the text, then, the vendor being tenant in tail in possession, that is, having a freehold estate in possession, the writ of præcipe could have been brought against him; but as such recovery could only bar him of the estate of which he was then actually seised, it was customary for him to convey an estate of freehold to some stranger, who being by such conveyance the actual tenant of the freehold, the writ of præcipe could be brought against him, and then, as explained in the next paragraph, the person so entitled to the freehold in possession, and having a writ of præcipe sued out against him, vouched or called the

tenant in tail to warrant his (the freeholder in possession's) title, by which not only the immediate estate tail would be barred but also all right and interest whatever which he mint have in the lands.

The person against whom the writ of præcipe was brought, was called the tenant, or tenant to the præcipe, as he was by virtue either of his original estate tail, or by virtue of a conveyance made to him for the purpose of suffering the recovery, the immediate tenant of the freehold. The party suing out the writ was called the demandant, because he claimed or demanded the premises as his right and inheritance; alleging that the tenant disseised or turned him out of the possession, or had come in under a party who had so done, or by other unlawful way. This being done, the tenant to the præcipe called the person under whom he claimed to warrant his title, which was denominated the vouching such person, or calling (vocatio) such person to warrantry; and such person was thence called the vouchee. Such vouchee being the party desirous of suffering the recovery and obtaining the fee, then called some other person to warrant his, the tenant in tail's title, who, (after a proceeding, called an imparlance), made default in warranting that title; and thereupon the court would give judgment, that the demandant should recover the lands against the tenant, and that the tenant should recover lands of equal value against the party who so made default; which recovery was called the recovery in value, or recompense for the lands so lost by the default of his appearing to warrant the title. Thus A. B., tenant in tail in possession, desirous of obtaining the fee simple of the lands, usually conveyed an estate of freehold to C. D., against whom the writ was issued, C. D. called A. B. to warrant his C. D.'s title, and A. B. called some other party (usually the crier of the court) to warrant his A. B.'s. title, and such person called the common vouchee, then made default in so defending A. B.'s title; whereupon the party suing out the writ recovered the lands, as mentioned above.

If, however, the tenant in tail had had the præcipe issued against him, and he had only vouched the common vouchee, his own immediate estate tail only would have been barred, and this was called a recovery with single voucher; but if the præcipe had been issued against the tenant of the freehold (made so by the tenant in tail by a distinct conveyance for that purpose), and the tenant vouched the tenant in tail, and then the tenant in tail vouched over the common vouchee, the recovery was called a recovery with double voucher; and this was always the plan whilst recoveries were acknowledged assurances of the land, in order not only that the estate tail might be barred, but also all remainders or reversions expectant thereupon, unless indeed such remainders or reversions were in the crown. By stat. 34 and 35 H. 8. c. 20., if a gift be made by the crown, as a reward for services, the tenant in tail is prohibited from barring such entail; and, if the estate tail be the gift of a subject, the tenant in tail could not by recovery or otherwise bar the remainder or reversion if it were in the crown. (Co. Litt. 372, Pig. Rec. 85., Cru. Rec., ch. 12.) But by the recent statute (sect. 15) this distinction as to the last named estates tail no longer exists; and every such tenant in tail may, by the means therein prescribed, bar such remainder or reversion.

In the case of a tenant in tail in remainder, he could not suffer a recovery alone, but must have procured the concurrence of the tenant of

the particular estate of freehold in possession, the tenant for life; and in that case the writ of præcipe was usually brought against the tenant for life, or against some party to whom he conveyed his estate of freehold. The inconveniences frequently attending this state of circumstances, is pointed out in the First Real Property Report referred to in the Introduction, antè page 14.

The recoverer, generally speaking, gained a clear and absolute fee on his recovery of the premises, not subject to any charges but those of the recoveree.

When lands were adjudged by this fictitious proceeding to be recovered against the party making default, (the common vouchee) those lands were supposed to go, if ever recovered, as the lands for which the suit is brought would have gone unless the recovery had been suffered ; and it was for this supposed recompense in value, that the issue in tail were held to be barred; for if the recoveree should obtain the recompense in lands from the common vouchee, (which there was 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.

When recoveries were used, it was customary to execute a deed either to lead or to declare the uses of it, for, upon the completion of the suit, the demandant, or as he was subsequently called the recoverer, took an absolute estate in fee simple, but as the recovery, if suffered without any good consideration, and without any uses declared, would, like any other conveyance, enure only to the use of him who suffered it, these deeds were executed, declaring in what line of destination the lands should go. (See 2 Bl. Com., ch. 21.)

Speaking of the subject of recoveries, Sir William Blackstone observes:"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 unrivetting the fetters of estates tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent, it hath often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis; which, perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations; or, by vesting in every tenant in tail of full age the same absolute fee simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery - though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together; or, lastly, by empowering the tenant in tail to bar the

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