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between term and term, which fometimes continue for near five months together: or lastly, by empowering the tenant in tail to bar the estate-tail by a folemn deed, to be made in term time and enrolled in fome court of record: which is liable to neither of the other objections, and is warranted not only by the ufage of our American colonies, and the decifions of our own courts of juftice, which allow a tenant in tail (without fine or recovery) to appoint his eftate to any charitable used, but alfo by the precedent of the statute 21 Jac. I. c. 19. which, in case of a bankrupt tenant in tail, empowers his commiffioners to fell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in paffing recoveries, are thought to be worthy attention, thofe 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 faid, to be an abfolute bar not only of all eftates-tail, but of remainders and reverfions expectant on the determination of fuch eftates. So that a tenant in tail may, by this method of affurance, convey the lands held in tail to the recoveror, his heirs and affigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reverfions. But, by ftatute 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 fuch estatetail, or the remainder or reversion of the crown. And by the ftatute 11 Hen. VII. c. 20. no woman, after her husband's death, fhall fuffer a recovery of lands fettled on her by her husband, or fettled on her husband and her by any of his an[362] ceftors. And by ftatute 14 Eliz. c. 8. no tenant for life, of any fort, can fuffer a recovery, so as to bind them in remainder or reverfion. For which reafon, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is defirous to fuffer a valid recovery; either he, or the tenant to the praecipe by him made, muft vouch the remainder-man in tail, otherwife the recovery is void: but if he * See pag. 286

d See pag. 376.

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does vouch fuch remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and fuffers the recovery to be had against the tenant to the praecipe, it is as effectual to bar the estate-tail as if he himself were the recovereef (5).

In all recoveries it is neceffary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seisfed of the freehold, else the recovery is void. For all actions, to recover the feifin of lands, must be brought against the actual tenant of the freehold, elfe the fuit will lofe its effect; fince the freehold cannot be recovered of him who has it not. And, though thefe recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae, properly qualified. But the nicety thought by fome modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provifions of the ftatute 14 Geo. II. c. 20. which enacts, with a retrofpect and conformity to the antient rule of law, that, though the legal freehold be vested in leffees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the praecipe;—that, though the deed or fine which creates fuch tenant be fubfequent to the judgment of recovery, yet, if it be in the fame term, the recovery fhall 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 praecipe, and declare the uses of the Ibid. 41, &c. 4 Burr. 1. 115.

f Salk. 571.

Pigot. 28.

(5) If a tenant in tail, to whom the eftate has defcended ex parte materna, fuffers a recovery and declares the ufes to himself in fee, the eftate will defcend to an heir on the part of the mother, even if he had the reverfion in fee from his father, and vice verfa; but if he took the eftate-tail by purchase, the new fee will defcend to the heirs general. 5 T. R. 104. If then a perfon, who has inherited an eftate-tail from his mother, wishes to cut off the intail and to make the eftate defcendible 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 eftate reconveyed back by them, by which means he will take the eftate by purchase, which will then defcend to his heirs general.

E e 2

recovery,

Book II. recovery, fhall after a poffeffion of twenty years be fufficient [363] evidence, on behalf of a purchafor for valuable confideration, that fuch recovery was duly fuffered. And this may fuffice to give the student a general idea of common recoveries, the laft fpecies of affurances by matter of record.

BEFORE I conclude this head, I muft add a word concerning deeds to lead, or to declare, the ufes of fines, and of recoveries. For if they be levied or fuffered without any good confideration, and without any ufes declared, they, like other conveyances, enure only to the ufe of him who levies or fuffers them. And if a confideration appears, yet as the most ufual fine, "fur cognizance de droit come ceo, &c." conveys an abfolute eftate, without any limitations, to the cognizee; and as common recoveries do the fame to the recoveror, these affurances could not be made to answer the purpose of family fettlements, (wherein a variety of uses and defignations is very often expedient,) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular ufes can be more particularly expreffed. 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 vaft and intricate machine of a voluminous family fettlement. And if thefe deeds are made previous to the fine or recovery, they are called deeds to lead the ufes; if fubfequent, 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; this is what by law he has no power of doing effectually, while his own eftate-tail is in being. He therefore usually, after making the fettlement propofed, covenants to levy a fine (or if there be any intermediate remainders, to fuffer a recovery) to E, and directs that the fame fhall enure to the uses in such fettlement mentioned. This is now a deed to lead the ufes of the fine or recovery; and the fine when levied, or recovery when fuffered, shall enure to the uses so specified and no other. For though E, the cognizee or recoveror, hath a fee-fimple vefted in himself by the fine or recovery; yet, by the opera

1 Dyer, 18.

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tion of this deed, he becomes a mere inftrument or conduitpipe, feised only to the use of B, C, and D, in fucceffive order: [364] which use is executed immediately, by force of the statute of ufes *. Or, if a fine or recovery be had without any previous fettlement, and a deed be afterwards made between the parties, declaring the ufes to which the fame fhall be applied, this will be equally good, as if it had been exprefsly levied or suffered in confequence of a deed directing it's operation to those particular ufes. For by ftatute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and fuffered, fhall be good and effectual in law, and the fine and recovery fhall enure to fuch ufes, and be esteemed to be only in truft, notwithstanding any doubts that had arisen on the ftatute of frauds 29 Caṛ. II. c. 3. to the contrary,

* This doctrine may perhaps be more clearly illuftrated by example. In the deed or marriage fettlement in the Ap pendix, No. 11. § 2. we may fuppofe the lands to have been originally fettied on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reverfion to Cecilia Barker in fee; and now intended to be fettled to the feveral ufes therein expreffed, viz. to Abraham and Cecilia Barker till the marriage of John Barker with Catharine Edwards, and then to John Barker for lite; remainder to trustees to preferve the contingent remainders; remainder to his wife Katharine for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to the first and other fons 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

neceffary, in order to bar the eftate-tail
of John Barker, and the remainders ex-
pectant thereon, that a recovery be fuf-
fered of the premises: and it is thought
proper for though usual,itis by no means
neceffary: fee Forrester. 167.) that in or-
der to make a good tenant of the freehold,
or tenant to the praecipe, during the co-
verture, a fine should be levied by Abra-
ham, Cecilia, and John Barker; and that
the recovery itself be suffered against this
tenant to the praecipe, who fhall vouch
John Barker, and thereby bar his eftate-
tail, and become tenant to the fee-fimple
by virtue of fuch recovery: the uses of
which eftate fo acquired, are to be thofe
expreffed in this deed. Accordingly the
parties covenant to do thefe feveral acts
(fee pag.viii.): and in confequence there-
of the fine and recovery are had and fuf-
fered (N°. IV. and N°. V.), of which
this conveyance is a deed to lead the
ules,

OF

CHAPTER THE TWENTY-SECOND.

ALIENATION BY SPECIAL

CUSTOM.

W

E are next to confider affurances by fpecial custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and fuch customary eftates, as are holden in antient demefne, or in manors of a fimilar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his feigniory, it is therefore a forfeiture of a copyhold. Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by furrender; though in fome manors, by special custom, recoveries may be suffered of copyholds: but these differing in nothing material from recoveries of free land, fave only that they are not fuffered in the king's courts, but in the court baron of the manor, I fhall confine myself to conveyances by furrender, and their confequences.

SURRENDER, furfumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for fuch purposes as in the furrender are expreffed. As, it may be, to the use and behoof of A and his heirs; to the ufe of his own will; and the like. The procefs, in most manors, is, that the b Moor. 637.

a Litt. § 74

tenant

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