46 any of them, had nothing in the lands and tenements comprised "in the said fine, at the time of the said fine levied. And it is 66 ordained, that every fine which shall be hereafter levied, in any "of the king's courts, of any manors, lands, tenements, and other "possessions, after the manner, use, and form, that fines have "been levied afore the making of this act, be of like force, effect, "and authority, as fines so levied be or were afore the making of "this act. And every person shall be at liberty to levy any fine "hereafter, at his pleasure, whether he will after the form con"tained and ordained in and by this act, or after the manner and "form aforetime used." It follows from this last provision, that fines levied without proclamations, continued to be subject to the statute of non-claim. When once the five years has begun to run, it continues to run on notwithstanding any subsequent disabilities1. The privileges Doe v. Jones, of infancy, &c., were only given to those to whom a right first 4 T. R. 300. accrued, and in whom it first attached; and therefore, if the person to whom the right first accrued was not under any disability, and died before the expiration of the five years, within which he ought to make his claim, and such right descended to his son, or heir-at-law, who was then under disability, such son, or heir, must make his claim before the expiration of the five years, which had commenced to run in his ancestor's lifetime, otherwise he would be for ever barred: because the right did not first accrue to him, but to a person under no disability 2. It was formerly doubted, whether the heir of a person dying under disability was obliged to make his claim within five years after the death of his ancestor, or was allowed an indefinite period of time for that purpose; but it has been settled, that the claim must be made within five years of the death of the ancestor3. The operation of a fine at common law was, as we have seen, to discontinue the estate of the issue in tail. It reduced his title to a right of action; if, previous to the statute of non-claim, he did not assert his title within a day and a year, he was barred; after this statute, he had an indefinite period, till the passing of the statute of Henry 7, which gave to this assurance an entirely one who has a reversion in fee expect ant upon an estate for life, will bar strangers who do not make their claim within five years, (Co. Litt. 298. a; Stowell v Zouche, Plowd. 355. 3 Dillon v. Leman, 2 H. BI. 584. Bro. Ab. Fine, pl. 1; Co. Litt. 121. a. n. 1. new character; for if the fine was levied with proclamations, according to that act, it barred, immediately, not only the issue in tail, but also all remainder-men and reversioners, if they did not make their claim, and pursue their lawful remedy, within five years after this right to enter accrued. Doubts, however, sprang up, for which it is not easy to find any solid foundation, as to the operation of this statute in enabling the tenant in tail to bar his issue. In the 19 Henry 8, the question was fairly raised, in a case which came before all the judges in Serjeant's-inn1. A tenant in tail had levied a fine in his lifetime, and the five years had run; after his death, the question was, whether his issue were barred or not, and it was decided, by five judges against three, that they were. Whether this determination was thought not to have been sufficiently warranted by the 4 Henry 7, or whether merely for putting an end to all doubt on the question, the 32 Henry 8, c. 36, intituled, an act "for the exposition of the statute of fines," was passed, which, after shortly reciting the 4 Henry 7, proceeds thus:-" Sithen which time, by "diversity of interpretations and expounding of the same statute, "it hath been and is yet by some manner of persons doubted and "called in question, whether fines, with proclamations levied or to "be levied before the justices of the Common Pleas, by any person "or persons having or claiming to have, in any manors, lands, "tenements, or hereditaments, comprised in the said fine, in possession, reversion, remainder, or in use, any manner of es"tate tail, should immediately after the said fine levied, en"grossed, and proclamation made, bind the right heir and heirs "of such tenant in tail, and every other person and persons "seised and claiming to their use or uses; by occasion whereof, divers debates, controversies, suits, and troubles, have been begun, moved, and had, within the realm, and mo be like to "ensue, if remedy for the same be not provided: for the establish"ment and reformation whereof, and for the sure and sincere interpretation of the said statute, in avoiding all dangers, con"tentions, controversies, ambiguities, and doubts, that hereafter may ensurge, grow, or happen, it is ORDAINED and ENACTED "That all and singular fines, as well heretofore, or hereafter to "be, levied before the said justices, with proclamations according "to the said statute, by any person or persons of full age, of use, any manors, lands, tenements, or hereditaments, before the "time of the said fine levied, in any wise entailed to the person so levying the same fine, or to any of the ancestor or ancestors "of the same person, in possession, reversion, remainder, or in shall be, immediately after the same fine levied, engrossed, "and proclamations made, adjudged, accepted, deemed, and taken, to all intents and purposes, a sufficient bar and discharge for ever, against the said person and persons, and their "heirs, claiming the said lands, tenements, and hereditaments, "or any parcel thereof, only by force of such entail; and against "all other persons claiming the same, or any part thereof, only to their use, or to the use of any manner of heir of the bodies of "them, any ambiguity, doubt, or contrariety of opinion, arisen or "grown upon the said statute, to the contrary notwithstanding." 66 66 90 b. A fine at common law did not, as we have seen, bar the issue in tail, it merely discontinued his estate; and it soon became a question, whether by a fine under the statute, the issue were immediately barred, provided the proclamations were afterwards duly made, or whether the issue could save his right, by entering, before all the proclamations were duly made. It was finally decided in Purslow's case, that the fine was an 'Cited 3 Rep. immediate bar, provided the proclamations were afterwards duly made. In this case A. being tenant in tail of several manors, and having issue a daughter, levied a fine and died. The daughter immediately brought a formedon for the recovery of the estate tail, pending which all the proclamations were made. It was unanimously determined that the daughter was barred by this fine, though her ancestor had died before the proclamations were made; and in the Case of Fines2, where tenant 23 Rep. 86 b. in tail levied a fine, and died before all the proclamations were made, leaving a son beyond the sea, who did not return till after all the proclamations were made, and then claimed the land, it was resolved by all the judges, " that, although a right of entail descended to the son, on the death of his father, in consequence of his dying before all the proclamations were made, yet, when all the proclamations passed, this right which descended to him was for ever barred, and the issue could not have saved it by any claim." A fine therefore, with proclamations, converted the estate tail ' Symonds v. 2 & 3 Wm. immediately into a base fee, that is to say, a fee determinable on failure of issue of the tenant in tail; but did not affect the estates in remainder or reversion expectant on it, provided the remainderman, or reversioner, made his claim within due time after his right accrued. It is a general principle, that, where two estates in the same right unite in the same person, the less estate merges in the greater; and on this principle, but for the express provisions of the statute de donis, if a person had been tenant in tail, with the reversion in fee immediately expectant upon it, the former would have merged in the latter. It was decided, however, that the protection of the statute did not extend to the base fee into which the estate tail was converted by a fine1; and consequently, when tenant in tail with reversion in fee expectant upon it, levied a fine, the base fee, into which his estate tail was converted, immediately merged. The consequence was, that the estate became liable in his hands to all the incumbrances to which the reversion had been subject, a circumstance which very materially diminished the value of this mode of acquiring the fee simple; and, generally speaking, notwithstanding its greater cheapness and facility, rendered it expedient for the tenant in tail to acquire the fee simple, by means of a recovery, by which, as will appear in the next section, the estate tail was enlarged into a fee simple, the estates in remainder and reversion were entirely defeated, and consequently, also, all the charges to which they were liable. This distinction is not applicable to disentailing deeds, under the act for the abolition of fines and recoveries, by which it is enacted, "That, if a base fee in any lands, "and the remainder or reversion in fee in the same lands, shall, "at the time of the passing of this act, or at any time afterwards, "be united in the same person, and at any time after the passing "of this act there shall be no intermediate estate between the "base fee and the remainder or reversion, then and in such case "the base fee shall not merge, but shall be ipso facto enlarged "into as large an estate as the tenant in tail, with the consent of "the protector, if any, might have created by any disposition "under this act, if such remainder or reversion had been vested in any other person2." 4, c. 74, s. 39. 66 SECT. 5.-OF COMMON RECOVERIES. Taltarum's case, 216.-Effect of a common recovery, 217.Principal parts of a common recovery, 218.-Tenant to the præcipe, ib.—Amendment of recoveries, 222.-Reversal of Recoveries, 224.-Collateral effects of a recovery, 230.--Covenant to suffer a common recovery, 232. A recovery, in its most extensive sense, is the restoration of a previous right by the solemn judgment of a court of law; and judgments, whether obtained after a real defence made by the tenant, or upon his default or feigned plea, have the same force and efficacy to bind the right of the land so recovered, and to vest a free and absolute estate in fee simple in the recoveror1. A 12 Inst. 321. common recovery is a judgment obtained on a fictitious suit brought against the tenant of the freehold in consequence of a default made by the person who is last vouched to warranty in such suit; and has been defined to be "a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate as if he were tenant in fee simple2." 2 Martin v. It would, in the present state of the law, be an idle waste of Strachan, Willes, 451. time to occupy ourselves in describing the machinery of a common recovery. It is amply detailed in books that must be in the hands of every student or practitioner interested in this subject. Nothing more will be attempted here than to state concisely the course of judicial determination, which finally resulted in establishing common recoveries as one of the assurances of the realm, and to explain so much of their constituent parts and legal operation. as is necessary for understanding the provisions of the act for the abolition of fines and recoveries. The statute de donis, the gentilitium municipale, as it has been called3, was a measure essentially feudal and aristocratic Co.Litt.392. b. in its character; and, in the then existing state of society, a parliamentary repeal of it being impossible, the judges appear, from a very short period after its passing, to have resorted to every species of legal device in order to evade or nullify its operation. Thus, it is said to have been determined in a very early case, that, if the tenant in tail was evicted of his estate tail, and recovered over in value, such a recovery in value was a bar to the estate tail, because the issue had a recompense. This principle was still 'Mary Porting ton's Ca. 10 Rep. 37 b. |