c. 74, s. 13. said records and proceedings respectively shall be kept by such 3&4 Will. 4, persons respectively, searches may be made and extracts and copies obtained as heretofore, and on paying the accustomed fees; and when any of the records and proceedings shall, by the order of the court or justices having the control over the same, be kept by any other person, then, so far as relates to the records and proceedings in the custody of such other person, searches may be made, and extracts or copies obtained, at such times and on paying such fees as shall from time to time be ordered by the court or justices having the control over the same; and the extracts or copies so obtained shall be as available in evidence as they would have been if obtained from the person whose duty it would have been to have made and delivered out the same if this act had not been passed (1). (1) By 5 & 6 Will. 4, c. 82, the offices in the Court of Common Pleas connected with fines and recoveries are abolished. The records and documents concerning the duties of such offices are to be transferred to the officer of the Court of Common Pleas appointed under 3 & 4 Will. 4, c. 74, for registering the certificates of acknowledgment of married women subject to the order of that court (s. 2). The business of the abolished offices is transferred to the same officer (s. 3). Searches may be made and copies taken of the records and documents, which copies and extracts, signed by the same officer, shall be as available in evidence and as effectual as the same would have been if signed by the officers of such abolished offices. The 5 Vict. sess. 2, c. 32, passed on 18th June, 1842 :-" Whereas the records of fines levied and recoveries suffered in the lately abolished courts of great sessions in the principality of Wales, and the lately abolished court of session in the county palatine of Chester, were in many cases so irregularly and carelessly engrossed and kept, that divers purchasers, and others whose titles were intended to be secured by and under the said fines and recoveries, are in danger to have the same impeached, notwithstanding that the said fines and recoveries had duly passed all the offices, and that the lands intended to be thereby assured are sufficiently described in the proceedings upon such fines and recoveries: be it enacted, that all fines levied in the lately abolished courts of great sessions in the principality of Wales, or in the lately abolished court of session of the county palatine of Chester, of which the writ of covenant was duly returned and compounded, and of which the acknowledgment was before the judge or by commissioners duly taken and allowed, and of which the said writs and concords, with other proceedings, were lodged in the office of the prothonotary of the county in which the lands named in such writs are situated, shall be holden good and firm in law, notwithstanding the misprision or neglect of any prothonotary, deputy prothonotary, secondary, or other officer of any of the said courts, or their clerks, or any other public officer whatsoever, to file the same, or to engross the chirograph or foot of such fine, to endorse or record the proclamations thereof, or to enrol or docket the said fine, or do any other thing which by his office he ought to have done after the acknowledgment of the said fine." Sect. 2. "That where it shall be needful to prove that any fine which appears to have been duly acknowledged was levied wtth proclamations in any of the said courts, it shall be taken to have been so levied, and shall have all the force of a fine levied with proclamations, although no chirograph or foot of such fine be found endorsed with proclamations, nor any entry of them or any of them appear on record, if such fine were duly enrolled or entered on the plea roll of the session in which it was levied, or docketed in the docket roll or docket book of such session, so as to set forth the names of the parties, and the places in which the lands are situated of which such fine was levied; or if within three years from the passing of this act, or such further time as the Court of Common Pleas shall in any case S. Ꮓ All fines levied in Wales and the Certain fines taken to be levied with proclamations. 3 & 4 Will. 4, c. 74, s. 13. Certain recoveries declared good in law. Fines and recoveries may be en rolled in the office of registrar of Court of Com mon Pleas. 27 Eliz. c. 9. allow, such fine shall have been docketed, in such form as aforesaid, in docket rolls or docket books of parchment or vellum, by the several late prothonotaries of the said abolished courts, or in case of the death or inability of any such prothonotary, by some person or persons appointed for that purpose by the Master of the Rolls; or if within the said period of three years, or such further time as the Court of Common Pleas shall in any case allow, the writ of covenant, and the concord and all other proceedings of such fine, shall have been enrolled, with the allowance of the said court, in a book or books, roll or rolls of parchment or vellum, as hereinafter provided: provided always, that any such fine may be reversed by writ of error issued within twenty years from the levying thereof." To prove the levying of a fine with proclamations in a court of great session in Wales, the chirograph was produced, having one proclamation indorsed, and the plea roll of the same session, at which the chirograph stated the fine to have been levied, containing the entry of a licentia concordandi between the same parties, and respecting the same premises, as those mentioned in the chirograph. It was held sufficient, by virtue of the stat. 5 Vict. c. 32, s. 2. (Doe d. Cadwalader v. Price, 16 Mees. & W. 603.) Sect. 3. "That all recoveries suffered in any of the said abolished courts whereof the writ of entry was duly returned, and the appearance of the tenant and vouchee or vouchees duly recorded by the court, or the warrant or warrants of attorney duly executed and allowed, and of which the said writ and other proceedings (if any) was or were lodged in the office of the prothonotary of the county in which the lands named in the said writ are situated, shall be holden good and firm in law, notwithstanding the nonenrolment or non-exemplification of such recovery, or any other misprision or neglect of any prothonotary or other officer as aforesaid to do any thing which by his office he ought to have done, after the recording of the appearance of the tenant and vouchee or vouchees, or the execution and allowance of the warrant or warrants of attorney: provided, nevertheless, that where no enrolment on the plea roll of the session in which such recovery was suffered, or any exemplification of a pretended enrolment thereof, sealed with the judicial seal of the court, or any entry on the remembrance roll sufficient to prove the arraignment of the writ of entry, can be found or produced, no such recovery shall be holden good by virtue of this act, unless within three years after the passing of this act, or such further time as the Court of Common Pleas shall in any case allow, the writ of entry or other proceedings extant of record touching the said recovery shall be enrolled as hereinafter provided, or such recovery shall have been docketed in full and ample manner as aforesaid: provided also, that any such recovery may be reversed by writ of error issued within twenty years from the suffering thereof." Sect. 4. "That, subject to such orders as the Court of Common Pleas from time to time shall make, any person may at any time henceforward cause the writ, concord, chirograph, proclamation, appearance, warrant of attorney, and all or any other proceedings in any fine or recovery levied or suffered in any of the said abolished courts, and now extant among the public records thereof, to be enrolled in the office of the registrar of certificates and affidavits of acknowledgments of deeds by married women in the Court of Common Pleas, which office, for the purposes of an act passed in the twenty-seventh year of Queen Elizabeth, intituled 'An Act for Reformation of Errors in Fines and Recoveries in the Twelve Shires of Wales and Counties Palatine, and for Exemplification of Fines and Recoveries generally,' and under such of the provisions of the said act as are now capable of taking effect, shall be deemed to be the enrolment office therein named: provided always, that no such enrolment of any writ of covenant or writ of entry shall be made as aforesaid where such writ shall not have been duly filed upon the proper file of the session in which the same was returnable, unless the compounding of such writ shall be proved to the satisfaction of the said registrar by an entry thereof duly made in the book of the compounder of king's silver for the county in which the lands named in such writ are situated; and in every such case such entry or certificate of composition made shall be enrolled together with such writ." Sect. 5. "And be it declared and enacted, that the Court of Common Pleas shall have the same power of amending any fine or recovery, and the record or enrolment thereof, whether as now extant, or as such fine or recovery, or any proceedings thereof, shall hereafter be enrolled, in manner aforesaid, as if the same had been originally levied, suffered or had in the Court of Common Pleas." 3 & 4 Will. 4, c. 74, s. 13. Saving the amending power of Court of Com mon Pleas. VI. ESTATES TAIL NOT BARRABLE BY WARRANTY. thereon, no longer 14. All warranties of lands which after the thirty-first day of Estates tail, and December, one thousand eight hundred and thirty-three, shall estates expectant be made or entered into by any tenant in tail thereof, shall be barrable by warabsolutely void against the issue in tail, and all persons whose ranty. estates are to take effect after the determination or in defeasance of the estate tail (m). (m) See 3 & 4 Will. 4, c. 27, s. 39, ante, p. 246. VII. ALIENATION OF ESTATES TAIL. 15. After the thirty-first day of December, one thousand eight hundred and thirty-three, every actual tenant in tail (n), whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all persons claiming the lands entailed by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act would have been vested in or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons,* including the King's most excellent Majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of any such estate tail: saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made (o). The remainder of the corresponding clause in the Irish act, 4 & 5 Will. 4, c. 92, s. 12, runs thus: "whose estates are to take effect after the determination or in defeazance of any such estate tail, including the King's most excellent Majesty, his heirs and successors, as regards the title to his Majesty to any reversion or remainder created or reserved by any settlement or will, and which reversion or remainder shall have come or shall hereafter come to the crown in consequence of the attainder of any person to whom the forfeited reversion or remainder was previously to such forfeiture limited by any settlement or will, but not in any other case, or where the title to the crown shall have accrued by any other means; saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons except those against whom such disposition is by this act authorized to be made." Power after the 1833, to dispose of lands entailed for a less estate. saving the rights 31st of December, in fee simple, or of certain persons. 3 & 4 Will. 4, c. 74, s. 15. Reversion in crown barred by conveyance under this act. (n) A disentailing deed, executed by a tenant for life, has not the same effect as a fine or recovery formerly had in divesting subsequent contingent estates, and so creating a tortious fee. Such a deed would have had no such operation at common law, and its effect under the statute depends entirely upon its having been executed by a tenant in tail. (Slater v. Dangerfield, 15 Mees. & W. 263.) By a disentailing deed under this act, after reciting that A. was tenant for life, with remainder to B. in tail of the two estates therein comprised, and that A. being called upon to pay a debt of 1,2007. had applied to C., who had agreed to advance that sum in consideration of B. joining in the deed, which he had also agreed to do in order to defeat all estates tail of B., and to convey the inheritance in fee therein, A. and B. jointly conveyed the two estates and all the interest of A. and B. therein to C., for 500 years, to secure the repayment of 1,2001. and interest, with remainder to A. for life, remainder to B. in fee; in fact, A. was tenant in tail, not tenant for life of one of the two estates: it was held, that the conveyance being for valuable consideration as to both, B. and C., the tenant in tail under A.'s entail, could not be heard to say, that such entail was not barred by the deed, the intention to convey the whole fee simple in the property so entailed being sufficiently expressed, and the operative words of the disentailing deed being large enough to bar such entail. (Evans v. Jones, 1 Kay, 29.) An alien might suffer a common recovery, (4 Leon. 404, Shep. Touch. 404,) and may execute a disentailing deed. (1 Jarm. on Wills, 34.) Actual tenant in tail means exclusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right. (Ante, s. 1, p. 316.) By letters patent, King Charles the Second, in the 25th year of his reign, in consideration of natural love and affection, granted an estate tail in certain lands to his illegitimate son, H. F., afterwards created Duke of Grafton. It was held, that such estate and all other estates tail and remainders, and reversions thereupon expectant or depending, were effectually barred and extinguished by indentures of bargain and sale under 3 & 4 Will. 4, c. 74, s. 15, notwithstanding the stat. 34 & 35 Hen. 8, c. 20. (Duke of Grafton v. London and Birmingham Railway Company, 6 Scott, 719. See Com. Dig. Estates, B. 31; Bac. Abr. Fines and Recoveries, 2nd division, C.) (0) A tenant for life in possession with a remote remainder in tail could by a recovery with double voucher bar such entail, but without prejudice to the intermediate interests between his estate for life and remainder in tail. (Smith v. Clifford, 1 Term Rep. 738; Meredith v. Leslie, 6 Br. P. C. 388; see Doe d. Lumley v. Earl of Scarborough, 3 Ad. & Ell. 43.) A rent being an incorporeal hereditament, and susceptible of the same limitations as other hereditaments, may be granted or devised for life or in tail with remainders or limitations over. But there is a difference between an entail of lands and an entail of rent; that the tenant in tail of lands, with the immediate reversion in fee in the donor, might, by a common recovery, bar the entail and reversion; whereas the grantee in tail of a rent de novo, without a subsequent limitation of it in fee, acquired by a common recovery only a base fee, determinable upon his decease and failure of the issue in tail: but if there was a limitation of it in fee after the limitation in tail, the recovery of the tenant in tail gave him the fee simple. (Smyth v. Farnaby, Carter, 52; Sid. 285; 2 Keb. 29, 55, 84; Weeks v. Peach, Lutw. 1218, 1224; S. C., Salk. 577; Chaplin v. Chaplin, 3 P. Wms. 229; Butl. Co. Litt. 298 a, n. 2; 1 Prest. on Conv. 3.) It will deserve consideration, whether a tenant in tail by an assurance under this act of a rent de novo, without any limitation in fee on its original creation, will acquire more than a base fee, as he would have done by a recovery; the act makes no distinction between a tenant in tail of land and of rents. (See ante, p. 316.) Ex provisione Viri, &c. Restraining Clause. 3 & 4 Will. 4, c. 74, s. 16. tail ex provi sent. 16. Provided always, and be it further enacted, that where Power of disposi under any settlement made before the passing of this act, any tion not to be exercised by woman shall be tenant in tail of lands within the provisions of women tenants in an act passed in the eleventh year of the reign of his Majesty sione viri, under King Henry the Seventh, intituled "Certain Alienations made 11 Hen. 7, c. 20, by the Wife of the Lands of her deceased Husband shall be except with asvoid," the power of disposition hereinbefore contained as to such lands shall not be exercised by her except with such assent as, if this act had not been passed, would, under the provisions of the said act of King Henry the Seventh, have rendered valid a fine or common recovery levied or suffered by her of such lands (p). (p) By stat. 11 Hen. 7, c. 20, (confirmed by stat. 32 Hen. 8, c. 36, s. 2,) The stat. 11 Hen. "if any woman who has any estate in dower or for life, or in tail jointly with 7, c. 20, and conher husband, or only to herself, or to her use, in any lands or hereditaments struction of it. of the inheritance or purchase of her husband, (Co. Litt. 326, b,) or given to the husband and wife in tail or for life, by any of the ancestors of the husband, or by any other person seised to the use of the husband, or of his ancestors, shall hereafter, being sole, or with any after-taken husband, discontinue, alien, release or confirm with warranty, or by covin suffer any recovery of the same against them, or any of them, or any other seised to their or either of their use; all such recoveries, discontinuances, alienations, releases, confirmations and warranties shall be utterly void and of none effect." And a right of entry is given to the persons entitled to the estate, and if such alienation were made by such wife and her second husband, such entry may be made during his life, but after his decease such women may re-enter and enjoy according to their first estate; but women if sole at the time of such alienation are barred, and an immediate right of entry is given to the persons entitled. The statute excepts discontinuances and recoveries made with the consent of the persons next entitled to the inheritance, and preserves the widow's right to alien for the term of her life only. The lastmentioned statute extends not only to cases in which the gift is confined to the issue of the husband, (Foster v. Pitfal, Cro. Eliz. 2, 524,) but to a limitation to the heirs of the body of the wife in tail general, with a remainder or reversion in favour of the husband or his ancestors. (Symson v. Turner, 1 Eq. Cas. Abr. 220; see Gretton v. Haward, 6 Taunt. 94; S. C., 2 Marsh. 9.) Where an estate is settled partly in consideration of the marriage, and partly in consideration of the money paid, the consideration of marriage will prevail and bring the case within the statute. (Villars v. Beaumont, Dyer, 145 a; Watkins v. Lewis, 1 Russ. & M. 390.) Some cases, though within the words of the statute, have been construed not to be within its meaning, as where an estate was devised by the husband to his wife in tail, with remainder over to a stranger in fee. (Cro. Eliz. 2; 1 Leon. 261.) So also, where the husband purchased an estate, but the whole consideration was paid by the wife's sister upon condition that such estate should be settled to the use of the husband and wife in tail: it was held, that the alienation of the wife after the death of the husband was valid, and not within the act. (Watkins v. Lewis, 1 Russ. & M. 378.) The statute 11 Hen. 7, c. 20, being made for the protection of the interests of the issue, did not apply when the heir in tail himself joined with his mother either in a fine, or in the conveyance declaring the uses it was intended to effectuate. (Curtis v. Price, 12 Ves. 97. See the cases on the last-mentioned statute collected in 1 Roper on Husband and Wife, by Bright, pp. 497, 515; Cruise's Dig. tit. XXXVI. c. 10; Prest. Conv. 19-21, 146–149.) |