and where a fine is necessary, (x) even an erroneous one will be sufficient: (y) but the cognizor must be in possession of the freehold. (≈) And though the fine be acknowledged in vacation, yet, if it be passed as of the preceding term, which it may be, it will support a recovery in the preceding term; (a) for it is sufficient if the fine be levied as of the term in which the recovery is suffered, (b) or of a prior term. And though the deed and fine making the tenant, are executed and levied subsequent to the judgment or delivery of seisin, yet if it be in the same term, it is sufficient: (c) but to free the title from doubt, the deed should be executed by the grantor or bargainor before the end of the term; (d) for it seems antedating it will not do. (e) acknowledged preparatory to the recovery; for then the entail will be barred, though the tenant in tail die before the recovery be effected: but then this would let in the incumbrances upon the reversion. See note 1, Barton's Precedents 273. (x) It is not necessary for a man and his wife to levy a fine to make the tenant. 2 Christian's Black. note 363. (y) Lloyd v. Evelin, 1 Sal keld's Rep. 589. (2) Smith d. Dormer V. It however is not material to the validity of the recovery, whether the grantee or bargainee, execute the deed or not, as the want of his execution will not be a defect in the title for it is rather on account of the declaration of uses, than the validity of the recovery, that the deed is usually executed by him. (f) But if he possess any interest, however trivial, it will be necessary for him to be an executing party: therefore, to prevent future difficulties being raised upon the title, it has been deemed the better way for him to execute the deed. And as the validity of the recovery will mainly depend upon there being a good tenant to the præcipe, (g) previous to the conveyance being prepared for that purpose, the title should be carefully investigated to ascertain in whom the freehold is vested, in order that the concurrence of such person may be obtained in making the tenant to the writ. (h) A husband, whether seized jointly with his wife, or only in her right, can make a good tenant to the writ, without the concurrence of his wife; (i) and (f) Preston's Conv. 175. D 1 Preston's Conv. 28. (h) Ibid. tit. Rec. (i) See the opinion of Mr. Booth, and also his note of Of the demandant. this is said to be the constant practice, because it saves the expense of a fine. (k) If the wife has the freehold, by way of separate estate, she alone is competent to make the tenant (1) but, if the lands be limited to the husband and wife and their heirs, they must both join in the conveyance. (m) And a person receiving, (n) or entitled to receive, (o) the rents and profits from trustees, may make a tenant for an equitable recovery. As to the demandant it may be observed, that it seems quite immaterial who he is, or whether he be previously named for the purpose or not, though he usually is named in the deed making the tenant to the præcipe. On a sale of lands the purchaser is sometimes made the demandant, and sometimes the purchaser and his trustee are both made demandants; (p) in marriage settlements one of the trustees is usually named for this purpose. When the recovery is suffered merely for the purpose of converting the estate tail into a fee simple, the solicitor of the tenant in tail is usually made demandant. And in all cases the party's solicitor if he reside (k) Pigott, Com. Rec. c. 3. Others, 2 Salk. Rep. 567. Ves. Rep. 266. (0) Grenville v. Blyth, 16 Ves. 224. (p) Touchstone, c. 3. and see the Appendix. in town, or his agent if the solicitor reside in the country, is made the tenant, as will hereafter be seen, in order that he may appear personally in Court; for though the demandant never actually appears, yet the tenant as well as the vouchee must appear, either in person or by attorney. In describing the manner of suffering a reco- Of voucher. very, it has been stated, that when the tenant to the præcipe appears in Court to answer the demandant's writ, instead of defending the title to the land, he vouches, that is calls, on another person who is supposed to have warranted the title to him at the time of the original purchase; and prays that that person may be called in to defend the title which he warranted, or otherwise to give lands of equal value to those which he shall lose by such defect of warranty. It has been held that if the writ of entry be brought against a tenant for life and a tenant in tail jointly, the recovery will be no bar to the estate tail; (q) and that if the writ be brought against the tenant in tail, and so the recovery issuffered with single voucher, it will only operate as a bar to the estate of which he may be in possession at the time when the recovery is (q) See Leech v. Cole, Cro. Eliz. 670. But this case is virtually overruled by that of Page v. Hay- 570. suffered but it will be no bar to the remainders over. (r) It is therefore now the practice always to suffer recoveries with at least double voucher, except where lands are given in tail, with a conditional limitation over, in the event of an alienation; in which case the writ of entry may be brought against the tenant in tail himself, and so the recovery be effected with a single voucher. In all other cases, recoveries should be suffered with at least double voucher; for 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. (s) A recovery with treble voucher is used to make a perpetual bar of the estate whereof the tenant to the præcipe was seized; and also of every estate of inheritance, which has ever been in the first or second vouchee, or their ancestors; and also of all remainders and reversions depending on those estates, and all charges and incumbrances derived out of those remainders and reversions. If a tenant for life and the remainder-man join in suffering a recovery, they may be jointly vouched,(t) and vouch over the common vouchee. But it is (r) Meredyth and Others v. Leslie and Others, 6 Bro. () Bro. Abr. tit. Taile, 82, Plow. 8. (t) Doe d. Greasley v. Nelson and Another, 2 Taunt. Rep. 58. |