[ 23 ] That the recovery of an equitable tenant in tail may complete the title to the fee a copyholder for life, with limitations over in tail, enfranchised, and devised to his wife; who entered, claiming the lands. Freehold lands were also entailed. And while the wife was in possession, claiming adversely, the first tenant in tail madea bargain and sale, and suffered a common recovery of all the manors, &c. devised by the will. He died, and the next remainderman filed a bill, claiming the benefit of the enfranchisement, and had a decree for a conveyance to the uses of the will. The plaintiff died. And the next in tail claimed to be entitled; and he and the widow, (the trustee by the declaration of the decree,) conveyed to the use of the tenant in tail. And afterwards the tenant in tail executed conveyances to make a tenant, &c. and a recovery was suffered, and he devised. Eyre, Baron, was of opinion that the first tenant in tail not having been in possession of the estate in question, when the recovery was suffered, it had no operation on that estate; that the last remainderman was therefore seized in tail male; that the recovery suffered by him bar red the intail, and the estate was, therefore, well devised by his will, and decreed ac cordingly. N. B. This case seems to have deserved further consideration. And in Piggott v. Waller, (cb) Robert Piggott, being seised in fee of two third parts of the manor of, Chesterton, devised his manor of Chesterton to trustees, so as to vest in them the legal fee, upon trust, after various other dispositions, for his eldest son Robert Piggott for life, remainder to his first and other sons in tail male, remainder to testator's right heirs. After the date of the will the testator purchased the remaining third part of the manor, and made a subsequent codicil, which the court construed to be a republication of the will. Robert Piggott, the son, supposing the third part to have descended to him, devised it by his will, and died, leaving Robert Piggott, his eldest son, and William Piggott, his second son. Robert Piggott, the grandson, after his father's death, suffered a recovery of the manor of Chesterton; and afterwards by deed confirmed the will of his father, and released to the trustees of that will the lands thereby devised; and afterwards purchased of the same trustee the third part of the said manor. It was decided by Grant, master of the rolls, that the recovery barred the equitable intail in the whole of the manor, though it was objected that the person suffering the (c b) 7 Ves. Jnn. 98. simple, the remainders must be of the equitable ownership. So also there must be the concurrence of the person who has the equitable freehold (d). On the two latter propositions, it is observable, however, that if the person who is the trustee for the tenant in tail, is trustee of the fee-simple, and has the equitable remainder in fee, this remainder, though for many purposes extin guished in the legal estate, is considered by a court of equity as an equitable interest, distinct from the legal estate, and liable to be barred by the recovery of the equitable tenant in tail, notwithstanding the legal estate is in the trustee (e); consequently the general rule must be understood of an equitable estate-tail, with a distinct legal estate in remainder, vested in some other person. Again, although the owner of the equitable freehold must concur in suffering an equitable common recovery, it is no objection that this equitable ownership arises froma legal estate; and therefore, though A. be tenant for life of the legal estate, for his recovery was not in possession, and did not intend to pass the whole by the recovery deeds. And in Lord Grenville v. Blyth (c c) a recovery suffered by an equitable tenant in tail, was by Grant, master of the (cc) 16 Ves. jup. 224. rolls, decreed to be valid, though the rents of the estate, at the time of the recovery, were paid by the trustees to other persons, under a decree, which was afterwards reversed. (d) 2 Ch. Ca. 64. (e) Robinson v. Cumming, Ca. T. Talb. 167. 1 Atk. 473. own benefit, a recovery suffered by an equit[ 24 ]able tenant in tail, with his concurrence, will be good; since the analogy is sufficiently observed in obtaining the concurrence of the person who is the beneficial owner (f). But it is quite clear that a recovery cannot be suffered by the owner of the legal estate-tail, without obtaining the concurrence of the person who has the legal freehold (g). And therefore as often as a recovery is to be suffered by the owner of the legal estatetail, care must be taken to obtain the concurrence of the person in whom the legal estate of freehold resides; and if it be outstanding in a mortgagee or trustee, such mortgagee or trustee must be a party. When a recovery is to be suffered of an equitable estate-tail, and the tenant in tail has made a mortgage by means of a conveyance in fee, or for an estate of freehold, it is doubtful whether a recovery afterwards suffered by the tenant in tail without the concurrence of the mortgagee can be supported. On the one hand, it is contended that the mortgagee has, in equity, merely a chattel interest, by way of security for his money, and that the whole. beneficial ownership, subject to the pay (f) Phillips v. Brydges, Amb. 545, 699. 1 Bro. Ch 3 Ves. jun. 120. (g) Salvin Ca. 73, in notis. V. Thornton, ment of the money, remains in the mortga-[ 25 ] In suffering a recovery it would be highly Whether the trustee will not be guilty of a the reco Sometimes a question arises under other circumstances besides those already noticed, whether there is a good tenant to an equitable recovery. In one case the tenant of the legal estate, conveyed, at the instance and with the consent of the owner of the equitable estate, and it was the opinion of several gentlemen who were consulted on this point, and among them, the late [ 27 ]Mr. Fearne, that this amounted to an alien ation of the equitable estate, making a good tenant to the writ of entry for suffering the equitable recovery. In another case, the legal tenant of copyhold lands, surrendered to the use of the person named tenant in the plaint, for suffering a customary recovery, and the equitable tenant in tail was vouched and vouched over. The point for conside(i) 16 Ves. jun. 283. |