3 & 4 Will. 4, c. 74, s. 1.

Mischiefs arising

from the necessity

of the freehold being in the

freehold, who was technically called the tenant to the præcipe; for all actions to recover the seisin of lands, to be effectual, must be brought against the actual tenant of the freehold. Hence a tenant in tail, who had not himself the immediate freehold, must, in order to bar by a recovery the entail and the remainders and reversion, have procured the concurrence of the person who had the immediate estate of freehold. In consequence of the difficulties which frequently occurred in procuring a conveyance from lessees for lives to make a tenant to the præcipe, their concurrence was dispensed with by the stat. 14 Geo. 2, c. 20 (21 Geo. 2, c. 11, Ireland); and by the same statute the person entitled to the first estate for life, or other greater estate in reversion expectant on the leases, was made competent to make the tenant to the præcipe, and was for that purpose considered as having the immediate estate of freehold. The common law required that a tenant to the præcipe in a recovery should have the freehold before and at the time of judgment given. But the above-mentioned stat. 14 Geo. 2, c. 20, has made a recovery valid, if the freehold is vested in the tenant to the præcipe before the end of the term, great session, session or assizes in which it was suffered, notwithstanding the fine or deed for making the tenant to the præcipe should be levied or executed after the judgment had been given in such recovery, and the writ of seisin had been awarded. Thus it appears that the legislature had relieved common recoveries from one of the requisites in real adverse suits, and in doing so had encumbered them with a legal fiction. In a recovery by a tenant in tail, it was necessary that he should vouch some person to warranty. If the writ was brought by the demandant against the tenant in tail, and he vouched over another person, the recovery only barred the estate tail, of which the tenant in tail was then seised, and the remainders and reversion. This recovery was called a recovery with single voucher. If the writ was brought by the demandant against another person who had the immediate estate of freehold, and that person vouched the tenant in tail, and he vouched over another person, the recovery barred all estates tail of or to which the tenant in tail was or ever had been seised or entitled, and the remainders and reversion. This recovery was called a recovery with double voucher. If there were two estates tail existing at one time in distinct persons, the one being derived out of the other, a recovery with treble voucher was sometimes suffered, although the necessity of such a recovery was considered doubtful. In this case the writ was brought by the demandant against some person who had the immediate estate of freehold, not being either of the tenants in tail, and that person vouched the tenant of the derivative estate tail, who vouched over the tenant of the original estate tail, and he vouched over another person. The person solely vouched or last vouched, was always some officer of the court where the recovery was suffered, and he was called the common vouchee. It was not usual to suffer a recovery with single voucher. In the case of a recovery with double or treble voucher, the person having the first estate of freehold conveyed it to a stranger to make him tenant to the præcipe; the tenant must have appeared in court, either personally or by attorney, and therefore some person in the habit of attending the court where the recovery was suffered was usually made the tenant, in order to save the expense and delay of a commission of dedimus potestatem, which must have been incurred if the tenant appeared by attorney. It was not necessary that the demandant should appear in court; but every vouchee must have appeared in court, either in person or by attorney. The demandant had judgment to recover the land against the tenant, and the tenant had judgment to recover of his vouchee land of equal value, in recompense for the land lost by his default; and if there were several successive vouchees, each person vouching had judgment to recover of his vouchee in like manner. The supposed recompense in value to the tenant and vouchee, or each successive vouchee except the last, was usually assigned as the reason why the issue in tail and the remainders and reversion were barred by a recovery.

"In consequence of its being required that the tenant to the præcipe should have the freehold, great difficulties were frequently thrown in the way of barring entails, and occasionally serious mischiefs arose. So long

c. 74, s. 1.

as the freehold remained in the tenant for life, or, if there should be no 3 & 4 Will. 4, tenant for life, in the tenant in tail, who was to suffer the recovery, there was no difficulty. But it often happened that the freehold was in a trustee, or had been alienated by the tenant for life or tenant in tail, and the person tenant to the in whom it was vested could not be traced, or would refuse to concur in præcipe. making the tenant; sometimes it was a question of construction whether the freehold was vested in trustees. If, under the impression that they had not the freehold, they were not made to join in the conveyance to the tenant, the recovery may be void. Not unfrequently, from omitting to investigate the title when a recovery was to be suffered, or from some other cause, it was not known that the freehold was in a trustee, or that it had been aliened, and from ignorance of this circumstance the recovery was void. These mischiefs could only be remedied by obtaining the concurrence of the person in whom the freehold was vested, and suffering a new recovery. If a recovery should be void for want of a proper tenant to the præcipe, and the defect should not be discovered in the lifetime of the tenant in tail who suffered it, the evil was incurable, and the estate might be lost by the persons claiming under the recovery. (See 1 Prest. on Conv. p. 28.)

66

When a tenant in tail in remainder was desirous of suffering a recovery, he was at the mercy of the person having the freehold, who had it in his power to withhold his assent. There were instances of this power being abused, and of the person having the freehold extorting from the remainderman a consideration for his concurrence. This sometimes occurred when the freehold continued in the first tenant for life, who might or might not be connected with the remainderman; but it more frequently occurred when the freehold was vested in an alienee, who was generally a stranger. There were cases in which great skill and caution must have been used in making the tenant to the præcipe, in order to preserve powers, rights and interests, which might otherwise be prejudiced or extinguished, as the following examples will show. If a tenant for life conveyed to a tenant to the præcipe to enable a remainderman in tail to suffer a recovery, he would, without caution, have extinguished the powers annexed to his estate for life, and let in upon his own estate the incumbrances of the remainderman. The expedients adopted to prevent this mischief are extremely subtle and artificial. (See note to section 34, post.) By similar expedients, a tenant for life with a contingent remainder in tail, either to himself or his children, might assist a remote remainderman in tail in suffering a recovery without destroying the contingent remainder. If a person having either an estate tail or an estate for life, with a contingent remainder to his children (but, as not unfrequently happened, it is doubtful which), was desirous of barring his supposed estate tail by a recovery, but at the same time wishes to prevent the forfeiture of his supposed life estate and the destruction of the contingent remainder, a different contrivance, no less artificial, was resorted to. In recoveries of copyholds, most of these precautions were unnecessary. After the demandant had obtained judgment in a recovery, a writ of seisin was sued out, to be executed by the sheriff of the court where the lands lie, and he returned that he had executed the writ, and delivered seisin of the lands to the demandant. But this was a false return, for the writ was never executed, and seisin was never in fact delivered. So that while the law required that the demandant should recover against the actual tenant of the freehold, when he had recovered the lands, it failed in the final object of the action, namely, that of giving him possession. Thus the suit was to commence with all the formalities of a real action, but to end with dispensing with the only object of those formalities, namely, to give to the demandant the lands sued for." (First Report of Commissioners of Real Property, ordered by the House of Commons to be printed, 20th May, 1829, pp. 20-25.)

(b) In the glossary clause of the Irish act, the word "estate" is made to Estate. extend to " any interest, charge, right, title, lien or incumbrance in, upon or affecting lands, either at law or in equity, whether present or vested, or future or contingent." The additional words, right and title, were probably introduced in consequence of some doubts which some, as it is conceived,

3 & 4 Will. 4, c. 74, s. 1.

Base fee.

Divest.

Relation of appointment to deed creating a power,

erroneously entertained whether the word estate would comprehend the right or title of dower of a married woman. (See note to section 77, post.) As to this definition of estate, see also Briggs v. Chamberlain, 11 Hare, 74.

(c) The species of base fee here defined is thus described by Lord Coke: --Where tenant in tail bargains and sells the estate to another and his heirs, and afterwards levies a fine to him and his heirs with proclamations, he has an estate in fee simple as long as the tenant in tail has heirs of his body, derived out of the estate tail; this being an inferior and subordinate estate, a remainder or reversion may be expectant upon it. (Seymour's case, 10 Rep. 97 b, 98 a; see 2 Ld. Řaym. 1148; Plowd. 557; Co. Litt. 18; Shep. T. 46, 103, 402; 3 Leon. 117; 1 Prest. on Estates, 431, 432.) Thus, suppose A., being tenant in tail general, levied a fine with proclamations, the estate tail was converted into a base or determinable fee, which would subsist as long as there was any issue inheritable under the entail, and on the failure of such issue, the person next in remainder after the estate tail was entitled to enter. It was clearly settled that a release or bargain and sale by a tenant in tail gave a base fee, voidable by the issue in tail. (Machel v. Clark, 2 Ld. Raym. 779; S. C., Salk. 619; Com. 120; 7 Mod. 18; 11 Mod. 19; Goodright d. Tyrrell v. Mead, 3 Burr. 1703; Seymour's case, 10 Rep. 95; Doe d. Neville v. Rivers, 7 Term Rep. 276.) A conveyance by a tenant in tail without a disentailing assurance will in general pass a fee determinable by the entry of the issue in tail. (Sturgis v. Morse, 2 De G., F. & J. 231, 232.)

(d) The word divest signifies nothing more than a mere deprivation of the possession. (Cow. Dict.) But the words put to a right have a more extensive signification, as they mean a deprivation not only of the possession, but also of the right of possession; for when an estate is turned to a right, the owner has only the jus proprietatis, or mere right of property, which could not be regained by a possessory, but only by a real action. (See 1 Burr. 107; 1 Taunt. 578, 588; 1 T. R. 738; Butl. Co. Litt. 239 a, n. (1).)

(e) It has been established ever since the time of Lord Coke (Sir Edward Clere's case, 6 Rep. 18), that where a power of appointment over real estate is executed, that the appointee takes under him who created the power, and not under him who executes it. The estates limited in default of and until the execution of the power are defeated by an appointment, for the execution of a power is the limitation of a use under and by the effect of the instrument by which the power was reserved. Thus in the ordinary case of a marriage settlement, with a power to the tenants for life of leasing for twenty-one years, when the tenant for life executes the power, the effect is not technically making a lease; but such lessee in fact stands precisely in the same relation to all the persons named in the first settlement, as if that settlement had contained a limitation to his use for twenty-one years antecedent to the life estate and the subsequent limitations. (Maundrell v. Maundrell, 10 Ves. 255, 256; see Co. Litt. 216 a, 241 a, notes by Butl.) It has been held, that a right of dower, which had attached before the execution of a power, was defeated by an appointment. (Ray v. Pung, 5 B. & Ald. 561; 5 Madd. 310.) So where an estate was limited to such uses as a purchaser should appoint, and subject thereto, to the usual uses to bar dower, an appointment made under the power would, in equity as well as at law, overreach any judgments, which might in the meantime have been entered up against the purchaser, and the circumstance that the appointee took with notice of the judgments would make no difference in this respect. (Skeeles v. Shearly, 3 My. & Cr. 112; 8 Sim. 153; Eaton v. Sanxter, 6 Sim. 517; Doe d. Wigan v. Jones, 10 B. & C. 459; Tunstall v. Trapps, 3 Sim. 300.) An important alteration has been effected by the statute 1 & 2 Vict. c. 110, s. 11 (3 & 4 Vict. c. 105, s. 19, Ireland), with respect to defeating judgments by the exccution of a power, for that statute authorizes execution against the real estates of the owner, over which, at the time of entering up judgment, or at any time afterwards, he had any disposing power which he might, without the assent of any other person, exercise for his own benefit. But in such a case, if the appointee is a purchaser or mortgagee, without notice of the judgment, then it may be de

feated by an appointment, in consequence of the 5th section of the stat. 2 & 3 Vict. c. 11.

An exception to the above rule, that the appointee takes under the deed creating the power, is, where the person executing the power has granted a lease or any other interest, which he may do by virtue of his estate, for then he is not allowed to defeat his own act. (Snape v. Turton, Sir W. Jones, 392; Yelland v. Ficlis, Moore, 788; Goodright v. Cator, Dougl. 477.) Thus, where an estate was limited by a marriage settlement to trustees to the use of the settlor for life, with remainders over, and with a power to the settlor, with the consent of the trustees, to revoke all the uses in the settlement, and the settlor having granted an estate for his own life in the settled estate, a revocation subsequent thereto of all the uses by him, with the consent of the trustees, will not affect the estate granted for his life for a valuable consideration. (Goodright v. Cator and others, Dougl. 477; see Gilb. on Uses, 142; Edwards v. Slater, Hardr. 415; Reg. v. Ellis, 4 Exch. 652.)

An appointment has not relation in point of time so as to make the appointee take from the time of the creation of the power; thus, in the case of The Duke of Marlborough v. Godolphin, 2 Ves. sen. 61, Lord Sunderland left the interest of 30,000l. to his wife for her life, and the principal, after her decease, to such of her children as she should by deed or will appoint. By her will she appointed 2,000l. to Mr. Spencer, and 1,500l. to Lady Morpeth, who both died in her lifetime. It was contended that the appointment related back to the time of Lord Sunderland's will, which relation would overreach the death of the two parties, who were alive at the time of the death of the testator, Lord Sunderland: and then it would be considered as vesting in them in their lives. But Lord Hardwicke said, that nothing vested in them during their lives, and consequently that nothing was transmissible to their representatives; because every person claiming under the execution of a power must claim not only according to the execution of the power, but according to the nature of the instrument by which that power is executed; and therefore a will in execution of such a power being always revocable, it is not complete till the death of the testatrix, although an appointment by deed, even with a power of revocation, would have vested the sums from the time of its execution. (See 1 Ves. sen. 139; 2 Ves. sen. 612; Lisle v. Lisle, 1 Br. C. C. 533.) A deed of appointment of lands in a register county was postponed to a mortgage made after it, which was registered both before the deed creating the power and the appointment. (Serafton v. Quincey, 2 Ves. sen. 413.) It is in general clear where a party, having both an authority and an interest, does an act, purporting an intention to pass the interest, he shall be held to intend that, and not to exercise his authority. (10 Ves. 258; see Sugd. on Powers, c. 5, s. 6.)

II. FINES AND RECOVERIES ABOLISHED.

Abolition Clause.

2. After the thirty-first day of December, one thousand eight hundred and thirty-three, no fine shall be levied or common recovery suffered of lands of any tenure, except where parties intending to levy a fine or suffer a common recovery shall, on or before the thirty-first day of December, one thousand eight hundred and thirty-three, have sued out a writ of dedimus, or any other writ, in the regular proceedings of such fine or recovery (f); and any fine or common recovery, which shall be levied or suffered contrary to this provision, shall be absolutely void.

(f) It will be observed that no time is prescribed for completing the fine or recovery.

3 & 4 Will. 4,

c. 74, s. 1.

No fine or recoor suffered after the 31st of De

very to be levied

cember, 1833.

Provision as to Covenants to levy Fines, &c.

3. In case any person shall, after the thirty-first day of December, one thousand eight hundred and thirty-three, be liable to levy a fine or suffer a common recovery of lands of any tenure, or to procure some other person to levy a fine or suffer a common recovery of lands of any tenure, under a Covenant or agreement already entered into or hereafter to be entered into, before the first day of January, one thousand eight hundred and thirty-four, then and in such case, if all the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, the person liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery, shall, after the thirty-first day of December, one thousand eight hundred and thirty-three, be subject and liable, under such covenant or agreement, to make, or to procure to be made, such a disposition under this act as will effect all the purposes intended to be effected by such fine or recovery; but if some only of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, then the person so liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery as aforesaid, shall, after the thirty-first day of December, one thousand eight hundred and thirty-three, be subject and liable under such covenant or agreement to make or procure to be made such a disposition under this act as will effect such of the purposes intended to be effected by such fine or recovery as can be effected by a disposition under this act; and in those cases where the purposes intended to be effected by such fine or recovery, or any of them, cannot be effected by any disposition under this act, then the person so liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery as aforesaid, shall, after the thirty-first day of December, one thousand eight hundred and thirty-three, be liable under such covenant or agreement to execute, or to procure to be executed, some deed whereby the person intended to levy such fine or suffer such recovery shall declare his desire that such deed shall have the same operation and effect as such fine or recovery would have had if the same had been actually levied or suffered; and the deed by which such declaration shall be made shall, if none of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, have the same operation and effect in every respect, as such fine or recovery would have had if the same had been actually levied or suffered; but if some only of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, then the deed by which such declaration shall be made shall, so far as the purposes intended to be effected by such fine or recovery cannot be effected by a disposition under this act, have the same operation