III. OF WHAT THINGS A COMMON RECOVERY MAY BE 1. Of what a Recovery may be had. A COMMON recovery may be suffered of all things, of which a writ of covenant for levying a fine lies; as of an "honor, island, barony, castle, messuage, curtilage, dovehouse, land, meadow, pasture, underwood, chapel, river, county, warren, rectory, view of frankpledge, waife, estray, felon's goods, deodands, furze, heath, moor, &c.; and in general, a recovery may be had of any thing of which a writ of entry will lie. It may be also of an advowson, i. e. of an advowson appendant to a manor, but not of an advowson in gross; (for the parson has the freehold, and therefore it ought not to be by writ of entry in le post, but by writ of droit o); as, since the stat. 32 Hen. 8, c. 7, it may of any other ecclesiastical or spiritual profits, as tithes, oblations, portions, pensions, or the like. A common recovery may, however, be suffered of an advowson in gross, and a small quantity of land on a writ of entry sur disseisin, and there are many precedents to this purpose (1). So of an annual pension or rent, because common recoveries are common assurances*. So it may be of a rent de novo; and therefore, if (1) The court, however, said, in Bayley against The Univerity of Oxford, that if this were res integra, they should have determined differently; but there being sixteen precedents found where an advowson in gross, and a little land had been suffered upon writs of entry sur disseisin, they adjudged the recovery good upon the principle that que fieri non debit factum valet. RECOVE RIES. RECOVE- Copyholds. one grants a rent to B. in tail, remainder to C. in tail, the remainder to C. may be barred by a common recovery'. A recovery may also be suffered of a rent-charge if issuing out of real estate; but not of an annuity chargeable only on the person or personal estate of the grantorTM. But it is said, that a common recovery cannot be suffered of a fishery, common of pasture or estovers, nor of a quarry, a mine or market, because they are not in demesne, but in profit only". Although copyhold estates may, according to the better opinion, be entailed even without a custom, yet no recovery can be had of them at common law, as well because in the eye of the law they are only tenancies at will, as because the copyholder cannot make any tenant to the præcipe, but by surrender. The way, therefore, to suffer a recovery of a copyhold entailed, is, by the mode pointed out by the custom of the manor, as either by committing a forfeiture, by making a lease without license of the lord, or the like; and the lands being seised into the lord's hands, are appointed to be to the use of the tenant and his heirs; or by tenant in tail committing a forfeiture, and the lord seising the copyhold, and then granting it to the copyholder and his heirs; or for tenant in tail to make a surrender to the putchaser and his heirs, and the purchaser to commit a forfeiture, on which the lord seises, and he makes proclamations; all which modes, if sanctioned by the custom, will be a good bar of the entail and the remainders over?. And where there is none of these customs, the way to bar an entail is by the tenant in tail surrendering to a person to make him tenant to the præcipe, (i.e. to a plaint) who is admitted, and then a plaint, in the nature of a writ of entry in the post, is brought against him, who vouches the tenant in tail, and he the common vouchee; and then the recoveror sur 1 Sid. 285; 2 Keb. 55. m Pig. 97. See Turner v. 2 • See Pig. 102. Sid. 315; 1 Keb. 752; Ibid. 127. RIES. renders to the use of tenant in tail and his heirs, who is R ECOVE admitted accordingly, and thereby the estate-tail and remainders are barred. freeholds. But though a recovery in the Common Pleas will not Customary pass lands held by copy of court-roll, yet a recovery in that court of customary freeholds passing by surrender in a borough court, will, it seems, he good'. demesne. As to recovery of lands in ancient demesne, a common Ancient recovery is good, and stands in force till reversed by the lord by writ of disceit', as in the case of a fine levied of ancient demesne lands. A recovery may be had of a trust estate, as where cestui Trusts. que trust in tail is in possession, with remainders over, under the trustees, who have the legal estate, and suffers a common recovery; though in this case there is no legal tenant to the præcipe, yet this recovery will bar both the estatetail, and remainder and reversion; for a trust being a creature of equity, any conveyance or assurance of cestui que trust shall have the same effect and operation on the trust as it would have had on the estate in law, in case the trustees had joined: for otherwise, trustees, by refusing to join, or not being capable to execute the trust, might hinder the tenant in tail of that liberty to dispose of his estate, and bar the entail, remainders and reversion thereon expectant, which the law gives him as incident to his estate'. This was determined in the case of Eaton v. Collier", after solemn argument, and is now the constant practice of equity. 2. By what Description a Recovery may be suffered. Strictly speaking, the same accuracy should be observed By what dein the description of things of which a recovery is suffered, scription. RECOVE- as is requisite in a præcipe quod reddat in an adverse suit; but recoveries being now settled to be common assurances, to establish men in their purchases, they are very much favoured by the judges, and not compared to judgments in other real actions or adverse suits, and the proceedings are consequently less strictly construed. Hence, though the statute of Westminster 2, c. 5, says, non sint nisi tria brevia originalia for the recovery of advowsons, yet a writ of entry in the post has been admitted for an advowson in gross, because this being the original writ in these common recoveries, which are suffered by the consent of parties, the judges have allowed advowsons, as well as rents and other incorporeal inheritances, to pass by recoveries, quia consensus partium tollit errorem; so it is of commons in gross; and if this should not be allowed, there would be no method of barring the remainder or reversions depending upon estates-tail, which the tenant in tail, in every other case, has a power over'. And it appears to be now an established rule, that whereever the description is such, either in respect of the quantity, quality or place, as is sufficient to ascertain and identify the land intended to be conveyed by it, or which would be good in a deed, will be good in a common recovery z. of lf, therefore, a man be seised of a reputed manor, which really is no manor, and he suffer a common recovery this by the name of a manor, this is a good recovery of the lands which constituted the reputed manor, though, strictly speaking, there is no manor recovered; because the law supports this, as all other conveyances, according to the intention of the parties; for it would be severe to vacate this conveyance when the purchaser recovered them, x * 2 Inst. 353; Poph. 22, 23; 2 Vent. 32; Cowp. 346. Dormer's case, 5 Co. 40; Poph. 23. See Massey v. Rice, Cowp. 346. 5 Co. 40; Poph. 22; 1 Burr. 623; Mod. 206, 250; 2 Ibid. 47; Cru. Recov,165. by the assent of the vendor, under such a denomination". So if a recovery be suffered of a manor and its appurtenances, lands which have been reputed parcel of the manor shall pass; for it is but equitable, quod voluntas domini volentis rem suam in dium transferre rata habeatur; and though the recovery does not mention the lands reputed parcel of the manor, but only the manor itself, yet this may be supplied by the indenture if that be of the manor, and all lands are reputed parcel thereof, though occupied together but two years (1). And if a man having a third part of a manor, suffers a recovery of a moiety of the manor, this is good to pass his interest in the third part; for where the words of a conveyance (which a recovery is now considered to be) contain more than the grantor can convey, it would be an unreasonable interpretation to make this void and entirely useless, when they are sufficient to convey so much as he may lawfully pass; so if the recovery, in this case, had been of the third part of the manor, by the name of the moiety, part and purparty of the manor, this had been good for the whole third part, and not only for a moiety of such third part; for, common recoveries being but common assur (1) Note, that in all the books which report the case of Thynn v. Thynn, supra, it is said, that as to Sir Moyle Finch's case (which see, 6 Co. 63), all the judges of England gave their opinions under their hands, that the lands in reputation, belonging to that manor, should not pass; but that Coke, after he was made chief-justice, got it adjudged otherwise, and so it hath been holden ever since; and this judgment was approved, because many settlements depended on it. RECOVE |