Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Alienation by Matter of Record
ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in, to substantiate, preserve, and be a perpetual testimony of, the transfer of property from one man to another; or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king’s grants. 3. Fines. 4. Common recoveries.
I. PRIVATE acts of parliament are, especially of the late years, become a very common mode of assurance. For it may sometimes happen, that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that, by the strictness or omissions of family settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate; to give its tenant reasonable powers; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it,1 every man had raised an equity in his own imagination, that he thought ought to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark,2 that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that the settlements which they make of their estates shall be too easily unsettled when they are dead, by the power of parliament.
ACTS of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges, to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being and capable of consent, that have the remotest interest in the matter; unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever; except those whose consent so given or purchased, and who are therein particularly named.
A LAW, thus made, thought it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the other laws of the session; and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains however enrolled among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established.
II. THE king’s grants are also matter of public record. For, as St. Germain says,3 the king’s excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king’s grants must pass, and be transcribed, and enrolled; that the same may by narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honors, liberties, franchises, or ought besides, are contained in charters, or letters patent, that is, open letters, literae patentes: so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae; and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.
GRANTS or letters patent must first pass by bill: which is prepared by the attorney and solicitor general, in consequence of a warrant from the crown; and is then signed, that is, that is, superscribed at the top, with the king’s own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, “per ipsum regem, by the king himself.”4 Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed, “per breve de privato sigillo, by writ of privy seal.”5 But there are some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.
THE manner of granting by the king, does not more differ from that by a subject, than the construction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party: whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king’s grants, that they are made, not at the suit of the grantee, but “ex speciali gratia, certa scientia, et mero motu regis” [“by the special favor, certain knowledge, and mere motion of the king”]; and then they have a more liberal construction.6 2. A subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted:7 and if a feoffment of land was made by a lord to his villein, this operated as a manumission;8 for the was otherwise unable to hold it. But the king’s grant shall not inure to any other intent, than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for such grant shall not also inure to make him a denizen, that so he may be capable of taking by grant.9 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void.10 For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body, out of which the heirs shall issue: neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail:11 the grantee is therefore (if any thing) nothing more than tenant at will.12 And, to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6. that no grant of his shall be good, unless, in the grantee’s petition for them, express mention be made of the real value of the lands.
III. WE are next to consider a very usual species of assurance, which is also of record; viz. a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. its several kinds; and 3. its force and effect.
1. A FINE is sometimes said to be a feoffment of record:13 though it might with more accuracy be called, an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seizin is not necessary to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices; whereby the lands in question become, or are acknowledged to be, the right of one of the parties.14 In its original it was founded on an actual suit, commenced at law for recovery of the possession of land; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining same security.
A FINE is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an ancient record of parliament,15 18 Edw. I. “non in regno Angliae providetur, vel est aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum suum verificandum aliquid solennius testimonium producere, quam finem in curia domini regis levatum: qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causa providebatur.” [“There is no greater or more common security provided in the kingdom of England, or by which a person can acquire a surer title, than by a fine levied in the king’s court: nor can any testimony be produced more customary for confirming a title. It is called a fine because it is finis, that is, the end and consummation of all suits; and for this purpose it was provided.”] Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil16 and Bracton17 in the reigns of Henry II, and Henry III, as things then well known and long established; and instances have been produced of them even before the Norman invasion.18 So that the statute 18 Edw. I. called modus levandi fines [manner of levying fines], did not give them original, but only declared and regulated the manner in which they should be levied, or carried on. And that is as follows:
1. THE party, to whom the land is too be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant, by suing out a writ or praecipe, called a writ of covenant:19 the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by ancient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one tenth of the annual value.20 The suit being thus commenced, then follows,
2. THE licentia concordandi, or leave to agree the suit.21 For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is also another fine due to the king by his prerogative; which is an ancient revenue of the crown, and is called the king’s silver, or sometimes the post fine, with respect to the primer fine before-mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is, three twentieths of the supposed annual value.22
3. NEXT comes the concord, or agreement itself,23 after leave obtained from the court; which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas, or before one of the judges of that court, or else before commissioners in the country, empowered by a special authority called a writ of dedimus potestatem [we have given power]; which judges and commissioners are bound by statute 18 Edw. I. St. 4. to take care that the cognizors be of full age, found memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.
BY these acts all the essential parts of a fine are completed; and, if the cognizor dies the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable,24 still the fine shall be carried on in all its remaining parts: of which the next is
4. THE note of the fine:25 which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14.
5. THE fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied.26 Of this there are indentures made, or engrossed, at the chirographer’s office, and delivered to the cognizor and the cognizee; usually beginning thus, “haec est finalis concordia, this is the final agreement,” and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.
BY several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin [deceit]. And, first, by 27 Edw. I. c. 1. the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading all pleas shall cease. By 5 Hen. IV. c. 14. and 23 Eliz. c. 3. all the proceedings on fines either at the time of acknowledgment, or previous, or subsequent thereto, shall be enrolled of record in the court of common pleas. By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. 24. the fine, after engrossment, shall be openly read and proclaimed in court sixteen times; viz. four times in the term in which it is made, and four times in each of the three succeeding terms; during which time all pleas shall cease: but this is reduced to once in each term by 31 Eliz. c. 2. and these proclamations are endorsed on the back of the record.27 It is also enacted by 23 Eliz. c. 3. that the chirographer of fines shall every term write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the sheriff of every county, who shall at the next assizes fix the same in some open place in the court, for the more public notoriety of the fine.
2. FINES, thus levied, are of four kinds. 1. What in our law French is called a fine “sur cognizance de droit, come ceo que il ad de son done;” or, a fine upon acknowledgment of the right of the cognizee, as that which he has of the gift of the cognizor.28 This is the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record; the livery thus acknowledged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance, than a conveyance now originally made; for the deforciant, or cognizor, acknowledges, cognoscit, the right to be in the plaintiff, or cognizee, as that which he has de son done, of the proper gift of himself, the cognizor. 2. A fine “sur cognizance de droit tantum,” or, upon acknowledgment of the right merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest, which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed; as the possession during the particular estate belongs to a third person.29 It is worded in this manner; “that “the cognizor acknowledges the right to be in the cognizee; and “grants for himself and his heirs, that the reversion, after the “particular estate determines, shall go to the cognizee.30 3. A fine “sur concessit” is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be done reserving a rent, or the like: for it operates as a new grant.31 4. A fine “fur done, grant et render,” is a double fine, comprehending the fine fur cognizance de droit come ceo, etc, and the fine sur concessit; and may be used to create particular limitations of estate: whereas the fine sur cognizance de droit come ceo, etc., conveys nothing but an absolute estate, either of inheritance or at least of freehold.32 In this last species of fine, the cognizee, after the right is acknowledged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises. But, in general, the first species of fine, “sur cognizance de droit come ceo, etc.,” is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seizin in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory.
3. WE are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes, 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. The ancient common law, with respect to this point, is very forcibly declared by the statute 18 Edw. I. in these words. “And the reason, why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas the day of the fine levied; unless they put in their claim within a year and a day.” But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. I. c. 16. which admitted persons to claim, and falsify a fine, at any indefinite distance:33 whereby, as Sir Edward Coke observes,34 great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII reformed that mischief, and excellently moderated between the latitude given by the statute and the rigor of the common law. For the statute, then made,35 restored the doctrine of non claim; but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound unless they make claim, not within one year and a day, as by the common law, but within five years after proclamations made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.
IT seems to have been the intention of that politic prince, king Henry VIII, to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them more open to alienations; being well aware that power will always could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis) the statute 32 Hen. VIII. c. 36. was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestor, assigned to her in tail for her jointure;36 or unless it be of lands entailed by act of parliament or letters patent, and whereof the reversion belongs to the crown.
FROM this view of the common law, regulated by these statute, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.
THE parties are either the cognizors, or cognizes; and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband) it is therefore the usual and almost the only safe method, whereby she can join in the sale, settlement, or encumbrance, of any estate.
PRIVIES to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail since the statute of Henry the eighth, the vendee, the devisee and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act of the principal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied.37
STRANGERS to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as has before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea: and persons, who are thus incapacitated to prosecute their rights, have fine years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues.38 And if within that time they neglect to claim, or (by the statute 4 Ann. c. 16.) if they do not bring an action to try the right, within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of non-claim.
BUT, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risque defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain instatu quo [as they were]: whereas if a tenant for life or years levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner,39 if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire,40 the estate is for ever barred by it. Yet where a stranger, whose presumption cannot thus be punished, officiously interferes in an estate which in no wise belongs to him, his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereunto41) by pleading that “partes finis nihil habuerunt” [“the parties to the fine had no interest in the land”]. And thus much for the conveyance or assurance by fine: which not only like other conveyances binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.
IV. THE fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which, it was formerly observed,42 that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now therefore only to consider, first, the nature of a common recovery; and, secondly, its force and effect.
I. AND, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit or action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that its form and method will not be easily understood by the student, who is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. However I shall endeavor to state its nature and progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms, and phrases not hitherto interpreted.
LET us, in the first place, suppose David Edwards43 to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a praecipe quod reddat [command him to restore], because those were its initial or most operative words, when the law proceedings were in Latin. In this writ the demandant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it.44 The subsequent proceedings are made up into a record or recovery roll,45 in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, desires leave of the court to imparl, or confer with the vouchee in private; which is (as usual) allowed him. And soon afterwards the demandant, Golding, returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter.46 This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee) it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seizin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchaser.
THE recovery, here described, is with a single voucher only; but sometimes it is with double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least; by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee.47 For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seized; whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered.48 If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards does first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.
THIS supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For, if the recoveree should ever obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing) these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail.49 This reason will also hold, with equal force, as to most remainder-men and reversioners; to whom the possibility will remain in and revert, as a full recompense for the reality, which they were otherwise entitled to: but it will not always hold; and therefore, as Pigott says,50 the judges have been even astuti [cunning], in inventing other reasons to maintain the authority of recoveries. And, in particular, it has been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs, and assigns: and, as the estate-tail so continues to subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take place.
TO such awkward shifts, such subtle refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design, for which these contrivances were set on foot, was certainly laudable; the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent; it has often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis, which perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations: or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or, lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term time and enrolled in some court of record; which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, but by the precedent of the statute51 21 Jac. I. c. 19. which, in case of a bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in passing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.
2. THE force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But, by statute 34 & 35 Hen. VIII. c. 20. no recovery had against tenant in tail, of the king’s gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII. c. 20. no woman, after her husband’s death, shall suffer a recovery of lands settled on her in tail by way of jointure by her husband or any of his ancestors. And by statute 14 Eliz. c. 8. no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the praecipe by him made, must vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had, it is as effectual to bar the estate-tail as if he himself were the recoveree.52
IN all recoveries it is necessary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seized of the freehold, else the recovery is void.53 For all actions, to recover the seizin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae [actors of the fiction], properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provisions of the statute 14 Geo. II. c. 20. which enacts, with a retrospect and conformity to the ancient rule of law,54 that, though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the praecipe: and that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet, if it be in the same term, the recovery shall be valid in law: and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the praecipe, and declare the uses of the recovery, shall after a possession of twenty years be sufficient evidence, on behalf of a purchaser for valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.
BEFORE I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, inure only to the use of him who levies or suffers them.55 And if a consideration appears, yet as the most usual fine, “fur cognizance de droit come ceo, etc,” conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements, (wherein a variety of uses and designations is very often expedient) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family settlement. And, if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A tenant in tail, with remainder to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually covenants to levy a fine (or, if there be any remainders over, to suffer a recovery) to E, and that the same shall inure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall inure to the uses so specified and no other. For though E, the conusee or recoveree, has a fee-simple vested in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seized only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses.56 Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered, in consequence of a deed directing its operation to those particular uses. For y statute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall inure to such uses, and be esteemed to be only in trust, notwithstanding the statute of frauds 29 Car. II. c. 3. enacts, that all trusts shall be declared in writing, at (and not after) the time when such trusts are created.