restraint on alienation is merely for the bene fit of the husband, his issue, or heirs. Nor does this statute extend to copyhold lands (r), (r) Harrington v. Smith, 2 Siderf. 41, 73. OF SEISIN TO RAISE THE USES. 149 Of the Necessity of a Seisin in the Demandant Uses can arise under the Recovery. before any To perfect the legal title under a common recovery, and to give a seisin to the demandant in the recovery, a writ of seisin (except in some particular cases (s), as where there is a reversion expectant on a term of years, and there is an entry or claim) must be sued, and seisin delivered; and until such seisin is delivered, no uses can arise under the recovery; consequently till there is a seisin in the demandant, as the means of supplying a seisin to the uses, the person claiming under the uses hath no legal estate which will ad mit of an alienation by them, by deed: but they have an inchoate interest, which will al low of their devising their interest by will (t). The true ground of Selwyn v. Selwyn is that, even before the recovery was suffered, the testator had in him a title to a future use, which gave him a power of testamentary alienation; and his will operated on this use in its fiduciary state, and also on the estate itself, when the use was executed into estate. (s) Witham v. Lewis, 1 Wils. 48. 4 Bro. P. C. 504. (1) Selwyn v. Selwyn, 2 Burr, 1131. 150 OF SEISIN TO RAISE THE USES. Another ground of that case, and the ground to which it is more generally ascribed, is that the recovery and recovery deed formed part of the same assurance. Regularly, in preparing Abstracts of Title, the time at which the writ of seisin is returnable should be stated, for the purpose of ascertaining the time at which the title to the legal estate is complete: and that it may appear that there existed a complete title to the legal estate, at the time when a conveyance was made, by the persons claiming a title under these uses. Of certain Points relating to the Execution. In this place it is to be observed that if judgment is given in the life-time of the parties to the recovery, execution may be sued by or against the heir (u). By the common law, the writ of execution and the return must have appeared on the record: but now, by the statute 14 Geo. II. c. 20, s. 4, the law seems to have been remedied in this respect, and the recovery deed made evidence of the recovery, so as to supply any defect in entering the writ of seisin, &c. on record. Hence the necessity, that the recovery deed should be full and explicit, in prescribing the mode in which the recovery is to be suffered, and that care should be taken, that, in prescribing the mode of suffering the recovery, no error shall be committed. The form in the appendix may be safely followed. It will be found to be correct, not only in prescribing the mode of suffering the recovery, but in allowing a departure from some of the prescribed ceremonies, without deviating from the intention of the parties; so that should there be any thing to rebut the presumption (u) Shelley's case, 1 Co. 93. |