1 Octavian Lumbard's Ca. 44 Ed. 3, Year Book, 21. 212 Ed. 4, 19. further extended by a decision in the reign of Edward 3, by which it was determined, that, if a tenant in tail granted a rent-charge in consideration of a release of right to a person who had a prior claim to the estate, such a grant was binding on the issue in tail, because it was made for his benefit, and the estate tail descended to him as a recompense for the grant1. Taltarum's case.]-Thus far the decisions had gone on the ground of an actual recompense. But, in the reign of Ed. 4, even this show of deference to the express words of the statute de donis was abandoned, the judges having determined, that even a nominal and fictitious recompense, descending to the issue in tail, should be an effectual bar, not only to the issue in tail, but also to the persons entitled in remainder and reversion. This, though not expressly so decided, is the inference drawn from the determination of the judges in the celebrated case known as Taltarum's case2. The case was thus:-J. B. being Year Book, 14, scised in fee of the lands in question, gave them to one William Smith, to hold to him and the heirs of his body, by force of which he was seised. William Smith died, leaving Humphrey, his eldest son, on whom these lands descended, who entered and was seised per formam doni. Humphrey enfeoffed one Tregos of the said lands in fee, who rendered them to the said Humphrey and Jane, his wife, and to the heirs of their two bodies, remainder in fee to the said Humphrey, by force of which they were seised. Some time afterwards Jane died, on which Humphrey became sole seised of the lands in tail, and, being thus seised, one Taltarum brought a writ of right against Humphrey, and counted of his possession against him. Humphrey made defence, and vouched to warranty one R. King, who entered into the warranty, and joined the demise on the mere right. Afterwards R. King, the vouchee, made default, and departed in contempt of the court, in consequence of which final judgment was given, that the demandant, Taltarum, should recover the lands in question against Humphrey, and that Humphrey should recover lands of equal value of R. King, the vouchee. Humphrey afterwards died, without leaving heirs of his body; and the question was, whether Richard, the brother of Humphrey, who was heir in tail to those lands, should be barred by this recovery? It was determined by all the judges, that the estate tail was not barred by this recovery, because the tenant in tail was not seised of the estate tail at the time of the recovery, but of another estate; and as the recovery in value goes according to the estate whereof the tenant was seised at the time of the recovery, and not in recompense of the estate he had not, the issue in tail could have no recompense in this case, and, therefore, was not barred by the recovery. J Capel's Ca., 1 Rep. 62; Chol meley's Ca., 2 Rep. 52; Hudson v. Benson, 2 Lev. 28. It follows, therefore, that, if Humphrey had been seised of the estate tail of the gift of J. B. at the time of the recovery, Richard, who, be it observed, was tenant in tail in remainder, would have been barred. And the determination, therefore, amounts to this, that, by a recovery duly suffered, not only the estate tail of the recoveree, but all ulterior estates tail in remainder, would also be barred; and as, by force of the judgment, the recoveror was in of an estate in fee, it follows that all ulterior remainders and reversions also would be swept away. As all remainders and reversions were defeated by the recovery, it seems to follow pretty much of course, that all charges and incumbrances created by persons in remainder or reversion, would also be defeated1. Effect of a common recovery.]—It is commonly said, that a recovery suffered by tenant in tail, passes to the recoveror an absolute fee simple derived out of the estate tail. It is not easy to imagine how a larger estate can be derived out of a smaller. It would be more correct to say that the estate tail was by the operation of the recovery enlarged into a fee simple, the ulterior estates, and consequently all charges upon them being squeezed out and annihilated. So that, if a tenant in tail of lands, by purchase under a settlement made by an ancestor ex parte paternâ, with the reversion in fee by descent ex parte maternâ, had suffered a recovery to the use of himself and his heirs, the lands would descend to his heirs ex parte paternâ, for the new use was in fact derived out of the fee simple into which the estate tail was enlarged, and not out of the reversion in fee 2. For the Martin v. same reason, it is obvious, that a recovery would let in all ceding incumbrances made by the tenant in tail, and render valid all the acts of ownership which he had exercised over the estate. As if he had made a lease not warranted by 32 Hen. 8, c. 28, or confessed a judgment, or acknowledged a recognizance, and afterwards suffered a recovery, it operated as a confirmation of those charges which were before defeasible by the issue3. It is, there- Beck v. Welsh, fore, dangerous for a tenant in tail, who has in any manner incumbered his estate, to suffer a recovery; because the incumbrances become valid, and take place before any charge which is made on the lands after the recovery. And though a recovery be suffered pre Strachan, R. 104. 1 Wils. 277. Post p. 230. for a particular purpose, yet it will confirm all prior incumbrances1. Hence, we see that where tenant in tail, with the reversion in fee, had created incumbrances, and his son, on whom the estate tail and the reversion descended, suffered a recovery, it did not, like a fine, operate so as to let the reversion into possession, and make it liable to his father's debts; because the recovery destroyed all remainders and reversions, and the fee acquired by the recoveror was derived out of the enlargement of the estate tail. Therefore, the correct practice, where there was tenant in tail by descent, with reversion in fee in him also by descent, was, not to bar his entail by fine, but to suffer a recovery, which effectually prevented the estate thus acquired from becoming liable to the debts or contracts of his ancestor. Principal parts of a common recovery.]—The proceedings in Taltarum's case are the model and foundation of all modern recoveries. By reference to this case, it will be seen, that to constitute a valid recovery, it was necessary-1st. That a proper writ should be sued out; 2nd. That the person against whom the writ was brought should be the actual tenant of the freehold; 3rd. That the tenant should vouch over some other person; 4th. That judgment should be given for the demandant against the tenant, and for the tenant against the vouchee; and 5th. That the recovery should be executed by the sheriff of the county in which the lands lay. The second of these heads is the only one upon which it will be expedient to enter into any detail. Tenant to the præcipe.]-A common recovery being a real action carried on through all its forms, it was essential to its validity that the person against whom the writ was brought, commonly called the tenant to the præcipe, should have an estate of freehold in possession in the lands demanded by the writ. This necessity furnished a fertile source of difficulty in suffering recoveries; and more errors probably originated from inattention to this particular, than from all the other sources of accident or mistake. It was a circumstance of frequent occurrence to find, after the recovery had been suffered, that the legal estate was outstanding in a trustee, mortgagee, or some other person whose concurrence had not been obtained. Great inconvenience and expense, and not unfrequently great injustice, were the necessary consequence of such inadvertences. The inconveniences and the expense are obvious; the injustice also necessarily resulting, will 66 be sufficiently apparent, by observing that if the defect was not discovered in the lifetime of the tenant in tail, his issue, or the persons entitled in remainder, or reversion, could recover the estate, although its value had been paid to the ancestor. It is but fair, however, to observe, that both the legislative and judicial authorities have freely lent their aid in mitigation of these evils, as will appear from the following instances. Thus, for example, where lands were let out on lease for lives, tenant in tail could not suffer a recovery, unless he procured conditional surrenders from the lessees, or they joined him in making the tenant to the præcipe; this, from motives sufficiently obvious, and which cannot be blamed, they would frequently refuse to do. For the purpose, therefore, of abating this inconvenience, and at the same time protecting the just rights of both parties, it was by the 14 Geo. 2, c. 20, s. 1, enacted, "that all common recoveries, suffered without 'any surrender of such lease, and without the concurrence or "any conveyance from such lessee, should be valid and effectual "at law to all intents and purposes." But with respect to prior estates for lives, they are expressly excepted by the 2nd sect. of the same act; and by the 5th section, after reciting that it had frequently happened that the deeds for making the tenants to the writs of entry, or other writs for suffering common recoveries, had been lost, it is enacted, "That every common recovery, already "suffered, or hereafter to be suffered, shall, after the expiration of "twenty years from the time of the suffering thereof, be deemed “good and valid to all intents and purposes, if it appear upon "the face of such recovery, that there was a tenant to the writ, " and if the person joining in such recovery had a sufficient estate "and power to suffer the same, notwithstanding the deed or deeds "for making the tenant to such writ should be lost, or not appear." And relief in this behalf is still further extended by the act for the abolition of fines and recoveries, by which it is enacted, "That no common recovery, already suffered, or hereafter to be suffered, shall be invalid in consequence of any person, in "whom an estate at law was outstanding, having omitted to make the tenant to the writ of entry, or other writ for suffering such recovery; provided the person who was the owner of the land, "or had power to dispose of an estate in possession, not being 'less than an estate for life or lives, in the whole of the rents 66 13 & 4 Will. 4. c. 74, s. 11. ? Green v. 257. 9 Gartside v. Ca. 292. 66 "and profits of the lands on which such estate at law was "outstanding, or the ultimate surplus of such rents and profits "after payment of any charges thereout, and whether any sur"plus, after payment of such charges, shall actually remain or "not, shall, within the time limited for making the tenant to the "writ for suffering such recovery, have conveyed or disposed of "such estate in possession to the tenant to such writ; and an "estate shall be deemed to be an estate in possession, notwithstanding there shall be subsisting prior thereto any lease for lives or years, absolute or determinable, upon which a rent is reserved, or any term of years upon which no rent is reserved1." The judges have always been ready, where there were any reasonable grounds, to presume a surrender from the tenant for life, though none had been actually proved: as, for instance, where possession has accompanied the recovery for a considerable period of time2,-where the deeds have been suppressed by Proude, 1 Vent. the tenant for life, so that it cannot be ascertained whether he has surrendered his estate or not; for where deeds are suppressed omnia præsumuntur3,-or where there is collateral eviRatcliffe, 1 Ch. dence of a surrender by tenant for life, as a charge for drawing and engrossing the surrender in the attorney's bill of costs for suffering the recovery, he being dead4; and, in short, whenever a person had power to suffer a recovery, and thereby bar his estate tail, the slightest circumstances will be laid hold of, for omnia præsumuntur rite et solemniter, until the contrary appear; and it is reasonable that it should be so: but, if the contrary appear, then there is an end of such presumption. 52 Burr. 1065. "This," observes Lord Mansfield in Goodtitle v. Chandos 5, "was the case of the Earl of Suffolk's recovery 6; there the contrary did appear, and the presumption was thereby destroyed; there were blundering deeds actually produced, which appeared clearly to be wrong; and it was manifest, upon the evidence disclosed, that there was not a good tenant to the præcipe: it was, therefore, impossible for the court, in that case, to presume that there was a good tenant to the præcipe." There must, however, be something in the nature of evidence, however slender, to ground the presumption upon: a mere surmise that no tenant in tail in remainder would suffer a recovery without first getting in the life estate, to render it valid and effectual, will not do; for, if this "alone were sufficient to ground a presumption of a surrender 4 Warren v. Grenville. 2 Stra. 1129. Keen v. Earl of Effingham, 2 Stra. 1267. |