lose the protection of this statute against being barred (c). At this day, it is observable, the crown cannot alien the reversion or remainder in fee by any other means than an act of parliament. And particular estates, derived out of the reversion or remainder of the crown, are within the protection of the statute, so long [ 19 ] as the crown retains the reversion or re mainder (d). And by the prerogative of the crown a reversion or remainder in the crown, either in fee or in tail, cannot be barred by a common recovery of tenant in tail (e); but remainders to strangers may be barred, whether they are prior or subsequent to the estate of the crown (f). The origin of this protection to the crown cannot be accounted for on any other ground than a principle of tenure, that the estate of the crown is part of its ancient dominion; and that as against the crown, the tenant in tail is in the same predicament, as if his estate were derived out of a base (c) Com. Dig. Estates, B. 31. Co. Litt. 372, b. 2 Show. 124. Earl of Chesterfield's case, Hard. 409. (d) Com. Dig. Estates, B. 31. 8 Co. 77. Co. Litt. 372.b. (e) 2 Roll. Abr. 393. Ser- Neale ex demise Athol v. (ƒ) 2 Roll Abr. 393. Ser- seems contra. or determinable fee, or an estate subject to a condition. Nor can a woman seised in tail by the provision of the husband, or any of his ancestors, or by his or their procurement (g), bar the estate-tail, or the reversion or remainder, after the death of the husband, without the concurrence of the person next in remainder, or next inheritable. This regulation is founded on the enactments of the statute-law. The statute extends to all cases in which the wife is tenant in tail, either alone (h), or jointly with her husband (i). It embraces those cases also in which the gift is to the heirs of both their bodies (k), or to the heirs of her body, begotten by him (7), provided the intail proceeds from the husband, or some of his ancestors (m), or the lands were purchased with his money (n), or partly with his money. It also extends not only to all cases in which the gift is confined to his issue (o); but to those cases in which the gift is to the heirs of the body of the wife, generally, with a remainder or reversion in favor of the husband, or (g) Stat. of 11 Hen. VII. c. 20. (h) See the statute. (i) Laughter v. Humphrey, Cro. Eliz. 524. Queen v. Savage, Moor. 715. (k) See the statute. (7) See the statute. (m) Sharrington v. Scrotton, Plow. 300. 3 Co. 50, b. Cro. Eliz. 513. (n) Palmer, 217. (o) Foster v. Pitfal, Cro. Eliz, 2. 524. some of his ancestors (o o). The statute also comprehends those cases, in which the settlement, though in consideration of money of the wife, has marriage as the principal inducement (p). But it does not extend to those cases in which the gift proceeds from the wife (q), or from her friends, or from a stranger (r); or where the lands are purchased with the money of the the wife, unless marriage be the principal consideration; nor to those cases in which she has an estate in general tail (s), that is to say, to the heirs of her body generally, with the remainder or reversion in fee to herself or a stranger (t). It is also now settled that an alienation by the husband and wife jointly (u), is not restrained by the statute, though it is not within the express words of the saving clause. And after the death of the husband, she may alien with the consent of the heir in[ 21 ] tail (v), if there be any, and if none, with the consent of the person who has the first estate of inheritance in remainder or rever (oo) Simpson v. Turner, Eq. Abr. 220. (p) Villars v. Beaumont, Dyer, 146, a. (9) Eyston v. Studd, Plow. 463. (r) Ward v. Walthew, Cro. Jac. 173. (s) Foster v. Pitfal, Cro. Eliz. 2. 524. (t) Simpson v. Turner, Eq. Ab. 220. (u) Kirkman v. Thomson, Cro. Jac. 474. (v) Lincoln Coll. Ca. 3 Co. 58. see the stat. s. 8, 9. sion (w), but such consent must appear on record, or by inrolment. And she as being tenant in tail must be vouched or must be one of the vouchees. And it seems, on principle, that one of several expectant coheirs may assent for her share. So that in effect, though not in form, the recovery proceeds from the concurrence of the heir in tail, or those in reversion or remainder, rather than from the wife. There is a difference between an alienation by a woman tenant in tail, of the gift of her husband, or his ancestors, and an alienation by a husband tenant in tail jointly with his wife or by survivorship. The widow cannot bar the issue; the husband may, even though the wife be living. By the stat. of 32 H. VIII. c. 28, those discontinuances only of the husband which do not bar the issue are provided for (x). As in all other cases, tenant in tail can bar the remainder or reversion in fee expectant on his estate-tail, he can bar all leases, estates, and charges derived out of that remainder or reversion in fee (y), and all charges subordinate to his estate-tail (2) [22] And a recovery duly suffered by a tenant in tail, after a conveyance or settlement (w) Cro. Eliz. 514. Cheney v. Hall, Amb. 526. Stapleton v. Stapleton, 1 Atk. 2. (z) Eyton v. Eyton, 1 Bro. Par. Ca. 151. made by him, will bar the estate-tail, and all remainders expectant on that estate, so as to give effect to the conveyance or settlement, as against his issue and those in remainder or reversion (a). Of Recoveries of Equitable Estates. Recoveries may be divided into recoveries of the legal, and recoveries of the equitable ownership; these recoveries are generally distinguished as legal and equitable recoveries. It is necessary to attend to this distinction only, for the purpose of introducing a few observations, applicable, in a particular manner, to equitable recoveries. The general rule is, that equitable recoveries must be suffered with the same ceremonies, and by the same persons, as equitable owners, whose concurrence would be necessary in case their estates were legal, instead of being equitable (b). It is also a rule that a recovery by the owner of an equitable estate, will not bar a remainder in the owner of a legal estate (c). (a) See the cases cited in n. (y) above. (b) North v. Champernown, 2 Ch. Ca. 63, 78. (c) Salvin v. Thornton, Ambl. 545, 699. 1 Bro. Ch. Ca. 73 in nota, Phillips v. Brydges, 3 Ves. jun. 120. Boteler v. Allington, 1 Bro. Ch. Ca. 72. In Wynne v. Cookes, (ca) (ca) 1 Bro. C. C. 515. |