By what Tenants in Tail a Recovery may be suffered with Effect; and to what 'Extent in Point of Share.

And first, It is now to be considered by what tenants in tail a common recovery may be suffered, so as to bar the estate-tail, and the remainders and reversions expectant thereon. In this division, which in a great measure, is a summary, or review, of points already noticed, it is impossible to avoid the appearance of repetition.

A recovery is peculiarly the assurance by which a tenant in tail may enlarge, or more properly speaking, convert his estate-tail into a fee, by barring the estate-tail, and all remainders and reversions expectant on that estate so as to acquire an ownership, co-extensive with that of the person by whom the estate-tail was created; and cæteris paribus, namely, with the concurrence of the freeholder, a recovery may be suffered with effect, either by the tenant of an estate-tail in possession, or of an estate-tail in remainder or reversion (h), or by the person on whom an estate already alienated, divested, or discontinued,

(h) 2 R. Ab. 394, supra

was entailed, (i) and even by the issue in tail, although the estate-tail has been previously barred, by a fine with proclamations levied by their ancestor (k); or as a consequence by the statute of limitations, or warranty, &c.

But as it has been already observed, no one except a tenant of an estate-tail in possession can suffer a common recovery with single voucher with effect, and then only so as to bar this particular estate-tail, and the remainders, &c. expectant on that estate. But a person who has a remote estate-tail may, by merger, surrender, &c. oreven disseisin (1) of tenant for life, become tenant în tail in possession. The alienee of a tenant in tail, or the assignee of the crown, claiming the estate of a tenant in tail under an attainder for treason (m); cannot, in any case, bar the estate-tail or the remainders by suffering

a common recovery.

The privilege of suffering a recovery is given to the tenant in tail and his issue, and is personal to them :

And a corruption of the inheritable blood of the issue, by the attainder of their ancestor

(i) Maxwel's case at the end of Plow. page 8.

Sheffield v. Ratcliffe, Hob. 334.

Lincoln College case, 3 Co. 58, b.

(k) Barton v. Leaver, Cro. El. 388.

(4) 2 R. A. 395.

(m) Hob. 259.

for treason (n), will preclude their right to suffer a common recovery, so as to bar the remainders; for by the corruption of the inheritable blood, the issue are strangers. They forfeit the character of heirs in tail, so far as to take any benefit under the intail, though the estate continues by reason of the continu ance of issue (o).

And attainder of tenant in tail creates a disability (p) to suffer a common recovery. He is civiliter mortuus. Between the crime and attainder, it should, from analogy, seem, that a common recovery may be suffered (q).

But a recovery suffered by an alien, who is tenant in tail, will bar the remainders expectant on his estate (r).

And, as already observed, when the intail is of a subject which has a limited duration, as a rent charge, created de novo, and limited for an estate-tail, without any remainders over, the recovery of tenant in tail cannot enlarge the estate beyond the period prescribed for its duration.

And, as already noticed, it is apprehended that when an estate-tail in lands is derived

(n) Jenk. Cent. 251.

(0) Hob. 345.

(p) See Barton's case, 2 R. A. 394. Jenk. Cent. 250. 1 Keb.

398, by mistake cites Barton v. Bremer's case, as contra. (9) Stevens v. Winning, 2 Wils. 219.

(r) 4 Leo. 84.

out of a qualified or determinable fee, the recovery cannot do more than acquire the ownership for the whole of that determinable or qualified fee.

In short, the fee acquired by means of the recovery of the tenant in tail, cannot, in any case, be larger than the estate out of which the estate-tail is derived.

It is also observable, that when a tenant of a remote estate-tail suffers a common recovery, in which he is vouched, and vouches over, the effect of this recovery will be merely to bar his own estate-tail, and the remainders and reversions expectant thereon (s), and all conditions and collateral limitations annexed to his estate,

It will not affect prior estates-tail, (t) or any other prior estates. On the contrary, the owner of an intermediate estate-tail may, afterwards, by suffering a common recovery, bar the fee, acquired through the medium of the recovery, suffered by the owner of a more remote estate-tail.

To these observations also it may be added, that no tenant in tail can, by suffering a common recovery, bar any charges which are an incumbrance on his own estate, nor any es

(s) 3 Co. 6. 8 Term Rep. 10.

Smith v. Clifford, 1 T. Rep. 738, (4) Smith v. Clifford, already cited.

tates derived out of his own estate-tail. On the contrary, he may give stability to these' estates and charges, by suffering a common recovery (u).

The person also by whom the recovery is suffered must be full and complete tenant in tail, either in point of vested interest, or of right to an estate which was once vested.

In the first place, the cwner of a contingent or executory interest in tail, cannot, it is apprehended, by a common recovery, bar either his own interest, (except by way of estoppel) or the remainders, &c. expectant thereon; much less can the issue in tail (w) suffer a common recovery with effect in the life-time of the ancestor.

At the same time, it is observable, that a recovery suffered by tenant in tail, will bar contingent remainders expectant on his estate, and also terms of years, &c.

The owner of a contingent interest should be very cautious how he suffers a recovery or levies a fine, which may extinguish, even as against himself, the contingent interest in tail. It will prevent the vesting of the estate and as against himself at least, when there is a recovery, and as against himself and his

(u) Goodright v. Mead. 3 Burr. 1703.

Stapilton v. Stapilton, 1 Atk. 2.

() Apprise v. Apprise, Bendloes, eited 1 Keb. 391.