Imatges de pàgina
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PRACTICAL TREATISE

ON

CONVEYANCING.

CHAP. I.

OF COMMON RECOVERIES AND THEIR OPERATION,
AND FORM OF RECOVERY DEEDS.

1. Of Recoveries and their Operation.

No instrument prepared by the convey

ancer requires more attention than this

assurance.

It is to be considered principally as the assurance by which tenant in tail (a) may convert, or enlarge his estate-tail, into a fee-simple; or, more accurately speaking, (as will be afterwards shown) into a fee commensurate with the estate, which, at the time of creating the intail, was vested in the person by whom the intail was created, and thus bar the estate-tail, and all remainders and reversions expectant on that estate ; [ 2 ]

VOL. I.

(a) Pigot on Recoveries, passim.

and all conditions and collateral limitations annexed thereto (b), and charges subsequent to the same. The reason is stated 3 Atk. 591.

When the donor of the estate-tail has a fee-simple at the time of creating the estatetail, the recovery of tenant in tail, duly suffered, will enlarge his estate-tail into a fee-simple. In those instances, however, in which the donor of the estate-tail had merely a determinable or defeasible fee, then, as is advanced on principle, the effect of a recovery by a tenant in tail, will be merely to give an interest commensurate with the ownership, under the base or defeasible fee. As a recovery by a tenant in fee (c) will not bar an executory devise or springing use annexed to that estate, it is absurd that the recovery of a tenant in tail, created out of this determinable fee, should have the effect to give an interest which could not have been acquired by the donor of the estatetail. The same reasoning and a similar conclusion seem equally applicable to an estatetail derived out of a qualified or defeasible estate in fee. In short, the recovery cannot produce any other effect, than to acquire that extent of ownership, which belonged to

(b) Benson v. Hodson. 1 Mod. 108. 2 Lev. 29.

Page v. Hayward, 2 Salk. 570. Pigot on Recoveries, 176. Driver v. Edgar, Cowp. 379. Co. Litt. 827. b.

Gulliver v. Ashby, Burr. 1929.

(c) Pells v. Brown, Cro. Jac. 590. Palm, 131. Fearne, 306. Pigot, 134.

the donor of the estate-tail. Let it be re-[ 3 ]. membered, however, that though the owner of an estate in fee, subject to an executory devise or springing use, cannot bar such future interest, a recovery by tenant in tail will bar an executory devise or springing use annexed to his estate. Such executory devise or springing use falls within the terms condition subsequent, or collateral limitation (d).

From these deductions it is to be considered, in case a tenant in tail creates an estate-tail, and the second donee suffers a common recovery, this recovery will bar the issue under the second intail, and also the donor of that intail; but will not be a bar to the title of the issue under the first intail.

A passage in Co. Lit. 327 b. that if "A. "maketh a gift in tail to B., who maketh

a gift in tail to C., C. maketh a feoff"ment in fee, and dieth without issue, B: "hath issue and dieth, the issue of B. shall "enter; for albeit the feoffment of C. did "discontinue the reversion of the fee sim

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ple which B. hath gained upon the estate"tail made to C. not yet could it discon"tinue the right of intail which B. had, "which was discontinued before: and, there

(d) Pells v. Brown, Cro. Jac. 590. Palmer 131.

Page & Hayward, 2 Salk. 570, already cited, supra, p. 2.

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fore, when C. died without issue, then did "the discontinuance of the estate-tail of

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66

B., which passed by his livery, cease, and consequently the entry of the issue of B. "lawful," illustrates this doctrine.

And on this passage it is to be observed, 1st. That there is a discontinuance only for the time while C. shall live, and there shall be issue of his body. 2dly, It was not competent to C. or his issue to enlarge the discontinuance as against the issue of B., or as against A. or his heirs; for the discontinuance ceased on the failure of the issue of C. (e)

Thus also in a thing created de novo, as a rent, in which there is merely an estate-tail, without any remainder over, a recovery suffered of the rent by tenant in tail, though it may bar the estate-tail, cannot give to the rent a continuance beyond the period limited by the original grant (ƒ). These points illustrate, and seem, in some degree, to prove the proposition now under consideration.

When, however, the estate-tail in a rent is derived out of a fee-simple already existing in the rent; or the estate-tail is limited on its first creation with remainders over, the recovery of tenant in tail, duly suffered,

(e) Co. Litt. 333.

(f) Chaplin v. Chaplin,

3 P. Williams, 229. Butler's Co. Litt. 298, a. n. 2.

will acquire the whole dominion or ownership in the rent to the extent of the estatetail and remainders (g). The objection that [ 4 ] there cannot be a remainder of a thing created de novo, no longer prevails (h).

To bar an estate-tail and remainders and reversions, &c. expectant on that estate is the general use of a recovery and in its operation, as barring the estates of persons in remainder, it is peculiarly the assurance of tenant in tail, and has this effect only when it is suffered by the donee for the time being of that estate.

The assignee of tenant in tail, in other terms, the owner of a base fee derived out of an estate-tail, is not qualified to suffer a recovery with effect (i). Nor is a person who has an estate to him and his heirs, so long as another shall have heirs of his body (k): such person has a determinable fee, and

not an estate-tail.

Nor can the issue in tail suffer a common recovery in the lifetime of the ancestor, so as to bar the estate-tail or remainders, or do more than bar themselves by estoppel.

Sometimes this assurance is used as a

(g) Smith v. Farnaby, Car- Weeks v. Peach, already cited. ter, 52. Siderfin, 285.

Weeks v. Peach, Lutw.

1218.

(h) Smith v. Farnaby, and

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(i) 2 Roll's Abr. 394. 1. 41, Raym. 29.

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(k) Pigot on Recoveries, 129. 1 Mod. 111..

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