"first estate for life, or other greater estate

(in case there be no such estate for life in being) in reversion or remainder next after "the expiration of such leases has or have, [69]" by some lawful act or means, conveyed "or assured, or joined in conveying or as

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suring, or shall by some lawful act or means

convey or assure, or join in conveying or "assuring, an estate for life at the least, "to such person or persons as has or have "been, or shall become tenant or tenants to "the writs of entry, or other writs, whereupon such common recoveries have been " or shall be suffered."

From the exception it will be collected, that this act does not extend to persons who have estates of freehold, by act of law, as tenants by the curtesy, or in dower; or persons having estates for life under marriage settlements, wills, &c. or by any other means than leases at reserved rents.

This branch of the statute, in its positive and enacting part, is founded on the principle of the common law, as it applied to lands granted for particular estates, when the reversion continued parcel of a manor. In practice it was difficult to obtain the concurrence of these lessees; and though they, or those in whom their estate is vested, still are the persons against whom a writ of entry in a real adverse action must be brought, it

was perfectly reasonable to dispense with their concurrence in a common recovery, which is now merely a species of common

assurance.

The act, it is observable, gives validity to all recoveries suffered prior to the act. But by a proviso, there is a saving which protects the titles of those who should have availed themselves of their rights of entry &c. anterior to the 16th June, 1740.

And it is assumed, that the law is not altered, except for the purpose of aiding recoveries, as common assurances. On this ground it is assumed, that at present, as formerly, every real adverse action must be brought against the actual freeholder, although he holds under a lease at a reserved

rent.

And it may, perhaps, be contended, that a common recovery, suffered with the assistance of a lessee, having the immediate freehold, would be good, without the concurrence of the reversioner, entitled to receive the rent payable by such lessee, though the concurrence of such lessee is no longer essential, as formerly, to the validity of a common recovery.

In Goodtitle, on demise of Bridges v. Duke of Chandos (g), Lord Mansfield ob-[ 70 ]

(g) 1 Burr. 1072.

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served, "it is now fully settled and established, that tenant in tail may, if he pleases, either turn his estate-tail into a fee, or alienate it for his own benefit by duly suffering a common recovery ; but "he must have a sufficient estate and power "to qualify him to suffer such recovery,―he "must either be the tenant in tail in pos

session, or he must have the concurrence "of the freeholder who claims under the 66 same settlements. This principle is ad"hered to by the statute of 14 Geo. II. c. 20. "The tenant for life whose consent is neces

sary to the tenant in tail in remainder, to "enable him to cut off the intail, is not the "lessee of the land under a beneficial lease; "but the original tenant for life claiming "under the family settlement, and having a "life estate settled upon him prior, in order "of succession, to the other's remainder " in tail."

These observations are introduced, for the purpose of remarking, that it is immaterial whether the first tenant for life has the freehold under the same, or a different settlement, or under any other conveyance, or a will. At the common law, with the exception already noticed, the person who had the [71]freehold under a beneficial lease, was the person whose concurrence was necessary; and though the statute has dispensed with the

necessity of his concurrence, does it follow that his concurrence will not answer the purpose? Even when the reversion on leases for lives, remained parcel of the manor, a common recovery could not have been suffered of the particular tenements vested in these lessees distinctly from the manor, without the concurrence of the lessees, although their reversion and services would have passed inclusively by a recovery suffered of the manor, of which they were parcel. Before a conclusion that the concurrence of a tenant under a beneficial lease will not be sufficient, can be drawn, the statute of 14 Geo.II. must be construed to have made a material alteration in the law on this subject; and to have restricted a tenant in tail from availing himself of the concurrence of the person who, actually, and in point of law, is the freeholder. The act has no words of exclusion. It places the recovery suffered under the remedial part of the act, on the footing of a recovery duly suffered at the common law: thus allowing the inference, and even affording the illustration, that the recovery duly suffered, according to the rules of the common law, is to be supported.

The proviso is merely to controul the[ 72 ] enacting clause, and to show, that tenant in tail, when he availed himself of the provisions of the act, was not to be competent to

suffer a common recovery, unless he had the immediate estate-tail, or obtained the concurrence of the freeholder intitled to the receipt of the reserved rent.

In this place it may be observed as highly probable, that the necessity, at the common law, of the concurrence of the freeholder, though a mere beneficial lessee, or a usufructuary occupier, in suffering recoveries, &c. gave rise to leases for years, determinable on lives, so common in the western counties, as preferable to leases for life. Another advantage, indeed, resulting from this species of lease is, that renewals may be granted of additional interests, by way of interesse termini, so as not to affect the remedy for rent or benefit of the covenants under former leases. A still further advantage, resulting from these leases for terms is, that the renewal may made without a surrender by mortgagees, trustees, &c. and the legal title under the subsisting term may be left undisturbed.

be

Thirdly. Recoveries will be good as between the parties themselves and their heirs, notwithstanding the freehold is not in the person named as the tenant in the writ of entry. Between these parties, and all who [74]claim under them, the recovery operates as a conveyance, and has the effect of an estop