bar such executory devise or conditional limitation (d). And wherever tenant in tail has also the immediate remainder or reversion in fee, by descent, though prima facie a fine would enable him to acquire the fee-simple in possession, and render his title, unless it can be impeached, marketable (e), it is his interest, except under very particular circumstances, as apprehension of death, &c. before the term, to suffer a common recovery rather than levy a fine. By means of the recovery his title will depend wholly on his estate-tail, and the remainder or reversion in fee will be immaterial to the further deduction of the title ; and thus the investigation of the title will be abridged, by superseding the necessity of a long, and frequently troublesome, and expensive, investigation, respecting the state of title under the reversion, or remainder (f). While, if he levies a fine, he will[ 10 ] bar his estate-tail, and convert that estate into a base or determinable fee; and this fee will merge in the remainder or reversion in fee-simple and all the charges and incumbrances, (as judgments, annuities, &c.) affecting the reversion or remainder in fee, (d) Pells v. Brown, Cro. J. 590. (e) Sperling v. Trevor, 7 Ves. jun. 497. (f) Tracts on Cross Remainders, &c. will be accelerated and become an immediate, instead of being a remote, charge on the possession. So also tenant in tail having the remainder or reversion in fee by descent, will become immediately chargeable with the debts of the ancestor, who was the owner of the remainder or reversion in feesimple. Thus these incumbrances, instead of being barred, as they may be by a common recovery, will become an available charge. On this subject the student should read with great attention, the cases of Symonds v. Cudmore (g), Kynaston v. Clarke (h), Shelburne v. Biddulph (i), and also the observations in the Tracts on Cross Remainders, and Alienations by Tenants in Tail. The rule is clearly and fully established as to legal estates. In equity, the doctrine of merger is not of such universal application as at law; and it is questionable at least, whether that court, acting on a case of trust estates, would afford any relief to the incumbrancers, until the period for the commencement of the remainder or reversion has arrived, by the death of the tenant in tail and the failure of the issue inheritable to his estate. On the effect of common recoveries in barring remainders, conditions, and collate (g) 4 Mod.1. 2. Salk. 338, 1 Show. 370. (h) 2 Atk. 204. ral limitations, the cases of Page v. Hayward (k), Gulliver v. Shuckburg Ashby (), Driver v. Edgar (m), and Benson v. Hodson [ 11 ] (n), should be closely studied. On the authority and reasoning of the determination in Symonds v. Cudmore, Kynaston v. Clarke, Shelburne v. Biddulph, it should be understood as a general rule, to be observed in practice, that a tenant in tail, who is merely tenant in tail, or who has the reversion or remainder in fee by descent, should suffer a common recovery, in preference to levying a fine. And if he levies. a fine, to guard against the accident of his death, before the commencement of the term, the fine should be levied for the declared purpose of making a tenant to the writ of entry; and to the intent of suffering a common recovery: so that the fine and common recovery, if one shall be suffered, may form parts of the same assurance (o), and thus prevent, (as beyond all doubt they will do,) the merger of the ownership under the estatetail, in the reversion or remainder in fee; or, in other words, make the title dependent wholly on the ownership under the estate tail. In some cases, especially when there are heavy debts, or there is the apprehension of [ 12 ]judgments, &c. affecting the reversion or remainder in fee, and a fine is to be levied, it will be a caution, well worth the expence, previous to levying the fine, to make a demise for years to be created in the name of a trustee, upon trust to attend the inheritance; and to protect the possession during the continuance of the ownership under the estatetail; for the term being supplied partly from the estate-tail, and partly from the remainder or reversion in fee, will not be affected by the subsequent merger, should it take place, of the estate-tail; but would protect the possession during the time of the estate-tail, viz. till the failure of the issue inheritable under the estate-tail. The demise generally used to prevent a forfeiture, in those cases in which it is doubtful whether the party is tenant for life or tenant in tail, and of which there is a form in the appendix, would, with very little alteration, answer this purpose; but it has not occurred to the writer of these observations to remark that this caution has ever been adopted in practice. Observations on the Operation of Fines as dis-[ 13 ] tinguished from Recoveries. To elucidate the remarks on the extensive operation of recoveries, as distinguished from fines, and to show the application of these remarks to practice, a few general observations may be added in this place. It is quite clear that a tenant in tail, merely as such, cannot make a good title to the fee-simple, without suffering a common recovery. A fine levied by him, and operating as a conveyance, will only bar the estate-tail, and convert the same into a base or determinable fee (p). But if it operates by discontinuance, then a fee-simple will be gained yet such fee-simple may be avoided by the action of those in reversion or remainder; or they may be even remitted to their estate by operation of law. When however a person who has an estate-tail, with an immediate reversion in fee, levies a fine with proclamations, the effect of the fine will be to bar the estate-tail, and convert that estate into a determinable fee; and this determinable fee will merge in the feesimple. The consequences are, 1st, the title (p) Machell v. Clarke, 2 Lord Raym. 778. Seymour's case, 10 Co. 95. Doe v. Rivers, 7 Term Rep. 276. Doe v. Wichelo, 8 Term |