"sion after the death of the tenant for life: "the ejectment was brought immediately." To these observations it may be added, that the strongest possible ground for the presumption of a surrender is, that the tenant in tail had the possession at the time when he suffered the recovery. The next degree is, that though the tenant in tail was not, in fact, actually in possession at the time of suffering the recovery, the possession was afterwards held in opposition to the tenant for life, the issue in tail, &c.-In short, the former is the presumption arising from a fact, the latter from acquiescence. - Any act done by the tenant for life, as owner, subsequent to the recovery, rebuts the presumption of a surrender (9). In Barley's case, the person by whom the recovery was suffered had accepted a lease derived under the title of the jointress; so that there was an acknowledgment on his part[ 85 ] that the estate for life was continuing. And by the stat. 14 Geo. II. c. 20. sec. 5, "it is provided, that every recovery already "suffered or hereafter to be suffered, shall, "after the expiration of twenty years, from "the time of the suffering thereof, be deemed "good and valid to all intents and pur"poses, if it appears, upon the face of such (q) Haines Barley's case, 5 Mod. 210.5 recovery, that there was a tenant to the writ, and if the persons joining in such re66 covery had a sufficient estate and power to "suffer the same, notwithstanding the deed 66 or deeds for making the tenant to such "writ should be lost, or not appear." This branch of the act does not extend to any case in which the deeds making the tenant, are produced. It merely applies to those cases in which the deeds making the tenant, &c. are lost. When, therefore, the deeds are in existence, and produced, they may defeat the operation of a recovery, which, in the absence of such deeds, would have been presumed to have been good. For this reason a purchaser will not accept a title depending on a common recovery, without great caution, unless the deeds are produced, since he has no certainty of the uses, &c. and since he runs the risk that the deeds, if produced, might expose the title to the objection of being defective. [86]Of Recoveries operating by Estoppel, without a good Tenant to the Writ of Entry: and of the Necessity of the Concurrence in a second Recovery, or the Deeds preparatory thereto, of a Tenant in a former Recovery: with Observations, by Way of Caution, to guard against the Inconvenience sometimes experienced from the present Practice. A recovery suffered by a a tenant in tail without a good tenant to the writ of entry, is voidable by the issue in tail, and those in remainder or reversion. It is voidable only, not void. At least, this is the conclusion which it will be attempted to establish. But a recovery suffered by a person who has the inheritance, not intailed, will be good as against himself and his heirs; although the freehold be not vested in the person named as tenant to the writ of entry. It is also apprehended that a recovery suffered by a tenant in tail, upon a writ brought against a person not tenant of the freehold, will be binding on him, and continue in force till avoided. In the Marquis of Winchester's case (r), the person by whom the recovery was suffered had the freehold jointly with Anne Mills, and also the inheritance in tail; and it was[ 87 ] agreed, "that for the moiety of which Anne "Mills was tenant for life, the recovery was 66 not any bar, either to the estate-tail, which "Lionel" (the person by whom the recovery was suffered) "had expectant on the estate "of Anne Mills, or to the remainder of Henry, because for this moiety, Lionel was not tenant to the præcipe; but the recovery had its operation against him (r) 3 Co. 3. b. by estoppel and conclusion, which shall not bind the issue in tail, who claims per formam doni." So in Owen and Morgan's case (s), a husband, tenant by intireties with his wife, had suffered a recovery, as tenant, without the concurrence of his wife; and it was agreed that the recovery, as to the estate of the husband, took its effect by estoppel and conclusion. And in the case of Lincoln College (t), although a recovery was deemed defective against the issue in tail, it was considered to bar the party himself, so that he could not enter into the land. And in Say and Sele's case (u) the language of the court was, that "common recove[ 88 ] ries, although there are no tenants to "the præcipes, are good by way of estoppels, against the parties who suffer them, though not against remainder-men, strangers," &c. ،، And in Webb v. Nect, (w) a bargain and sale was made, and a recovery suffered to uses, by a person seised in fee, in reversion expectant on an estate of freehold. “ " Two points were moved. First, If the uses expressed in the indenture of bargain and "sale were good? 2d, If the recovery suf (s) 3 Co. 5. (u) 10 Mod. 40. fered against him in the reversion, where "the freehold was in a stranger, shall bind "the reversioner and his heirs? And the "court held clearly, as to the first point, "that the limitation to the uses, as this case was, was good. 2d, That the recovery was good against him in the reversion and "his heirs, and they commanded judgment "to be entered accordingly." So in Shelley's case (x), it was said, "if the "tenant in fee-simple makes a lease for "life, and suffers a recovery, he and his "heirs are for ever concluded; but if tenant "in tail be of a reversion expectant on an "estate for life, and he suffers a reco very, and hath judgment to recover over "in value, yet his issue shall avoid the reco<6 very, for he shall not be estopped, because "he claims in performam doni." In Barker v. Keate (y), North, Chief Jus-[89] tice, observed, "that if a real action be 66 brought against A. who is not tenant to "the præcipe, and a recovery be had against 66 him, the sheriff can turn him out who is "in possession; but if he, who is not in possession, come in by voucher, he is estopped to say afterwards, that he was not party to the writ, so that he who is (x) 1 Co. 96. (y) 2 Mod. 249. |