alien with the consent of the issue (s), if there are any, and if none, with the consent of the person who has the first estate of inhéritance in remainder or reversion (t), but such consent must appear on record. So that in effect, though not in form, the recovery proceeds from the concurrence of the issue, 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 is living. By the stat. of 38 H. VIII. ė. 28, those discontinuances only of the husband which do not bar the issue are provided for (v). As in all other cases tenant in tail can bar the remainders or reversions in fee expectant on his estate-tail, he can bar all leases, estates, and charges derived out of that remainder or reversion in fee (w), and all charges subordinate to his estate-tail (x).

(s) 3 Co. 58. see the stat. s. 8, 9.

(t) Cro. Eliz. 524.

(v) 8 Co. 72.

(w) Capel's case, 1 Co. 60.

Goodright v. Mead and Shilston, 3 Burr. 1703.

Cheney v. Hall, Amb. 526.

Stapelton v. Stapelton, 1 Atk. 2.

(e) Eyton v. Eyton, 1 Bro. Par. Case, 151.

And a recovery duly suffered by a tenant in tail, after a conveyance or settlement 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 (x).

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 particularly applicable to equitable recoveries.

The general rule is that equitable recoveries must be suffered with the same ceremonies, and by the sanie persons, as equitable owners, whose concurrence would be necessary in case their estates were legal, instead of being equitable (y). 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 (~).

(x) See ante n. (x).

(y) North v. Champernown, 2 Ch. Ca. 63, 78.

(a) Salvin v. Thornton, Ambl. 545, 699. 1 Bro. Ch. Ca. 73. Phillips v. Brydges, 3 Ves. jun. 120.

Boteler r. Allington, 1 Bro. Ch. Ca. 72.

That the recovery of an equitable tenant in tail may complete the title to the feesimple, the remainders must be of the equitable ownership. So also there must be the concurrence of the person who has the equitable freehold (a). On the two latter propositions, it is observable, however, first, 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 fec, this remainder, though for many purposes extinguished 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 (b); 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 from a legal estate; and therefore though A. is tenant for life of the legal estate, for his own benefit, a recovery suffered by an equitable

(a) 2 Ch. Ca. 64.

() Robinson v. Cumming, Ca. T. Talb. 167. 1 Atk. 437,

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 (b).

But it is quite clear that a recovery cannot be suffered by the owner of the legal estatetail, without obtaining the concurrence of the person who has the legal freehold (e). And therefore if a recovery is to be suffered by the owner of the legal estate-tail, care must be taken to obtain the concurrence of the person in whom the legal estate of freehold resides; and if it is outstanding in a mortgage 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 way of 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

(b) Phillips v. Brydges, 3 Ves. jun. 120.

(c) Salvin v. Thornton, Amb. 545, 699. 1 Bro. Ch. Ca. 72, 73

payment of the money, remains in the mortgagor; so that he is competent to make a good tenant of the equitable freehold. That he is competent is understood to be the opinion of a highly distinguished law character. On the other hand it is objected that the mortgage is, in equity, an alienation of the equitable freehold; so that the mortgagee has the equitable estate, subject only to redemption: and that the analogy of the rules of law, with regard to legal estates, must be applied to this case, so that the recovery cannot be good without the concurrence of the mortgagee. This was the opinion of a very eminent lawyer who now fills one of the highest departments in the profession.

In suffering a recovery, it would be highly imprudent to subject the title to an objection by neglecting to obtain the concurrence of the mortgagee. The point is important only in considering, whether a recovery suffered without this precaution will confer a title which can be safely accepted. There is no occasion on which it is more important that a full abstract of the title should be laid before the conveyancer for his advice, than that of preparing a recovery deed. It has happened more than once, that six recoveries have been suffered to bar the same estate-tail, and that five of them have been defective, for want of a good tenant to the writ of entry; and the sixth