tail (Morris v. Morris, I. R. 6 C. L. 73). But a quasi tenant in tail in 3 & 4 Will. 4, remainder of an estate pur autre vie, after an estate for life to some other c. 74, s. 1. person, could not by his own act, by fine or otherwise, in the lifetime of the tenant for life and without his concurrence, bar the remainders over (Slade v. Pattison, 5 L. J. Ch. 51; Allen v. Allen, sup. ; see Wastneys V. Chappell, 3 Br. P. C. 50; Edwards v. Champion, 3 D. M. & G. 202). So where an estate pur autre vie is limited to one for life with remainder over in tail, there the first taker cannot bar the remainder, unless the remainderman in tail joins (Low v. Barron, 3 P. Wms. 262; Osbrey v. Bury, 1 Ball & B. 53). Before this act estates tail were barred by means of fines or recoveries (See the note to sect. 2, post). (b) In the Irish act the word "estate" is made to extend to "any interest, Estate. 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." As to the definition of estate in the present act, see Briggs v. Chamberlain (11 Hare, 74); Williams v. Cooke (4 Giff. 343); Re Newton (23 Ch. D. 187). (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. Raym. 1148; Plowd. 557; Co. Litt. 18; Shep. T. 46, 103, 402; 3 Leon. 117; 1 Prest. on Estates, 431, 432). 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 v. Mead, 3 Burr. 1703; Seymour's Case, 10 Rep. 95; Doe 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 D. F. & J. 231, 232). Base fee. (d) The word divest signifies nothing more than a mere deprivation of Divest. the possession (Cow. Dict.) But the words turned to a right have a more extensive signification; 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, 589; 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 Relation of Clere's Case, 6 Rep. 18), that where a power of appointment over real appointment estate is executed, that the appointee takes under him who created the to deed creatpower, and not under him who executes it (Marlborough v. Godolphin, 2 ing a power. Ves. sen. 78); the appointee, however, does not take from the time of the creation of the power, but from the time of its complete execution, e. g., where the execution is by will from the testator's death (Ib.) The estates limited in default of and until the execution of the power are vested until an appointment is made (Doe v. Martin, 4 T. R. 39; compare Re Ware, Cumberlege v. Cumberlege-Ware, 45 Ch. D. 269), but are defeated by an appointment. Thus, in the case of a power of leasing, the lessee stands in the same relation to all the persons named in the settlement as if that settlement had contained a limitation to his use 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.) So 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). But the donee of a power cannot by an appointment defeat a lease or other interest granted by him by virtue of his estate (Snape v. Turton, Sir W. Jones, 392; Yelland v. Ficlis, Moore, 788; Goodright v. Cator, Dougl. 477; see Gilb. on Uses, 142; Edwards v. Slater, Hardr. 415; Reg. v. Ellis, 4 Exch. 652; see also the note post, p. 296). With reference to the rules against perpetuities and remoteness, where an appointment is made in exercise of a special power, the appointment 3 & 4 Will. 4, c. 74, s. 1. must be read into the instrument creating the power, and its validity tested in that way (Whitby v. Mitchell, 42 Ch. D. 500; 44 Ch. Div. 85; Re Brown and Sibley, 3 Ch. D. 159). But where the appointment is made under a general power, time runs from the execution of the power, not from its creation (Rous v. Jackson, 29 Ch. D. 521, 526). No fine or levied or the 31st of December, 1833. II. FINES AND RECOVERIES Abolished. 2. After the thirty-first day of December, one thousand eight recovery to be hundred and thirty-three, no fine shall be levied or common suffered after 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 and any fine or common recovery, which shall be levied or suffered contrary to this provision, shall be absolutely void (f). Report of recovery; (f) The act 51 & 52 Vict. c. 57, has repealed the words, "and be it further enacted," wherever they occurred in 3 & 4 Will. 4, c.27 and has also repealed immaterial words in the following sections, viz., 36, 47, 79, 80, 83, 84, and 89. The repealed words have accordingly been omitted. The following account of the nature and operation of fines and recoReal Property veries is abridged from the First Report of the Real Property Commissioners, 1829, pp. 20-25. Commis sioners. Definition of A fine in its origin was an amicable composition, by leave of the king or his justices, of any actual suit, whereby the lands were acknowledged a fine and its to be the right of one of the parties, and at common law all persons were origin. barred by it who did not claim within a year and a day. The safe title acquired by this process led, it is supposed, to the practice of transferring lands by means of a fictitious suit of the same nature as the real suit above alluded to. This is the origin of fines, which, before this statute, subject to certain modifications made from time to time by statutes, had been in use for centuries (See 34 Edw. 3, c. 16; 1 Rich. 3, c. 7; 4 Hen. 7, c. 24; 32 Hen. 8, c. 36). Different sorts of fines. Operation of fines. Definition of a common recovery and its origin. There were four sorts of fines, viz., 1st, a fine "Sur conuzance de droit come cen, &c."; 2ndly, a fine "Sur conuzance de droit tantum"; 3rdly, a fine "Sur concessit"; and 4thly, a fine "Sur done grant et render." The first and third were those in general use; the second was sometimes used, but the same purposes could not be attained either by the first or third; the fourth had become obsolete. The three principal uses to which fines were applied were, to bar estates tail, and enable a tenant in tail to acquire or pass a base fee (See 32 Hen. 8, c. 36), to gain a title by non-claim (See ante, p. 115; Davies v. Lowndes, 7 Scott, N. R. 141), and to pass the estates and bar the rights of married women (See Life Association v. Siddal, 3 D. F. & J. 74; Co. Litt. 121 a, n.; Dickens v. Unthank, 1 Jur. N. S. 916; 24 L. J. Ch. 501). For other effects of a fine, see notes to the following sections of this act, viz., sects. 20, 34, 38, 39, and the note to sect. 39 of 3 & 4 Will. 4, c. 27 (ante, p. 172); Doe v. Dilnot (2 Bos. & P. N. R. 401); Brassington v. Llewellyn (1 F. & F. 27). A common recovery was a judgment in a fictitious suit brought by the demandant against the tenant of the freehold, who vouched some person to warrant the lands, and judgment was given for the demandant to recover them against the tenant, in consequence of the person vouched c. 74, s. 2. making default in defending the title to the lands, which title he was 3 & 4 Will. 4, supposed to have warranted. In a recovery, the regular process of a real action was pursued throughout (See Broome v. Swan, 1 BI. Rep. 496, 526), and no compromise took place as in a fine. Common recoveries were invented by ecclesiastics in order to elude the statutes of mortmain (Willes Rep. 448, 551; 5 J. B. Moore, 607; 5 T. R. 109, n.; Shelford's Mortmain, 12, 13), and were in constant use for that purpose until checked by the statute of Westminster 2, 13 Edw. 1, c. 32. In consequence of the principles laid down in the 12 Edw. 4, in Taltarum's Case (Hardr. 209; Willes Rep. 452; Tudor, L. C. Conv. 605, 2nd ed.), a common recovery was afterwards applied to the purpose of evading the statute of Westminster 2, 13 Edw. 1, c. 1, commonly called the statute De Donis Conditionalibus (ante, p. 242). The principal use of a recovery was to enable a tenant in tail to bar not Operation of only his estate tail, but also all remainders, reversions, conditions, collateral a recovery. limitations and charges, not prior to the estate tail, and to acquire or pass a fee simple or an estate commensurate with the estate of the settlor; it was not unfrequently made use of at the same time to convey, release, bar, or extinguish the estates, rights, powers, and interests of married women and others. As to other effects of a recovery, see notes to sects. 18 and 38 of this act, and Doe v. Llandaff (2 Bos. & P. N. R. 491). The writ, in the case of a recovery, must have been brought by the Necessary demandant against the person who had the immediate freehold, who was parties to a called the tenant to the præcipe; consequently there were frequently great recovery for difficulties in barring entails, for if the tenant to the præcipe did not join barring in the conveyance, the recovery was void, and it often happened that he could not be traced or would refuse to concur (See further First Report ders. of the Commissioners of Real Property, ordered to be printed 20th May, 1829; 5 Cru. Dig.; Prest. on Conv.; Coventry on Recoveries; Shep. Touch.; Doe v. Scarborough, 3 Ad. & Ell. 1). estates tail and remain Provision as to Covenants to levy Fines, &c. December, recoveries under cove means of this 3. In case any person shall, after the thirty-first day of Persons liable December, one thousand eight hundred and thirty-three, be after 31st liable to levy a fine or suffer a common recovery of lands of 1833, to levy any tenure, or to procure some other person to levy a fine or fines or suffer suffer a common recovery of lands of any tenure, under a covenant or agreement already entered into or hereafter to be nants to effect entered into, before the first day of January, one thousand the purposes eight hundred and thirty-four, then and in such case, if all intended by the purposes intended to be effected by such fine or recovery can act; but in be effected by a disposition under this act, the person liable to any case levy such fine or suffer such recovery, or to procure some other where the purpose of a person to levy such fine or suffer such recovery, shall, after the fine or recothirty-first day of December, one thousand eight hundred and very cannot be so effected, thirty-three, be subject and liable, under such covenant or agree- the persons ment, to make, or to procure to be made, such a disposition liable to levy under this act as will effect all the purposes intended to be fines or suffer effected by such fine or recovery; but if some only of the shall execute purposes intended to be effected by such fine or recovery can be a deed which effected by a disposition under this act, then the person so liable shall have the to levy such fine or suffer such recovery, or to procure some tion as the fine other person to levy such fine or suffer such recovery as afore- or recovery. said, shall, after the thirty-first day of December, one thousand recoveries same opera c. 74, s. 3. 3 & 4 Will. 4, 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 and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered. Fines and lands in ancient demesne, when levied or suffered in a superior court, may be III. THE TENURE OF ANCIENT DEMESNE. Reversal of Fines, &c. 4. No fine already levied in a superior court of lands of the recoveries of tenure of ancient demesne which hath not been reversed, and no fine hereafter to be levied of lands of that tenure, shall, upon a writ of deceit already brought by the lord of the manor of which the lands were parcel, the proceedings in which are now pending, or upon a writ of deceit which at any time after the passing of this act may be brought by the lord of the said manor, be reversed as to any person except the lord of the said manor; and the court shall order such fine to be vacated only as to the lord of the said manor; and every such fine which may be reversed as to the lord of the said manor upon such writ of deceit as aforesaid shall still remain as good and valid against, and as binding upon, the conusors thereof and all persons claiming under them, as such fine would have been if the same had not been reversed by such writ of deceit as aforesaid; and reversed as to the lord by writs of deceit, the proceedings in which are now pending, or by writs of deceit hereafter to be brought, as valid against the no common recovery already suffered in a superior court of 3 & 4 Will. 4, lands of the tenure of ancient demesne which hath not been c. 74, s. 4. reversed, and no common recovery hereafter to be suffered of but shall be lands of that tenure, shall, upon a writ of deceit already brought by the lord of the manor of which the lands were parties parcel, the proceedings in which are now pending, or upon a thereto, and writ of deceit which at any time after the passing of this act may be brought by the lord of the said manor, be reversed as to any person except the lord of the said manor; and the court shall order such recovery to be vacated only as to the lord of the said manor; and every such recovery which may be reversed as to the lord of the said manor, upon such writ of deceit as aforesaid, shall still remain as good and valid against, and as binding upon, the vouchees therein, and all persons claiming under them, as such recovery would have been if the same had not been reversed by such writ of deceit as aforesaid (g). persons claiming under them, as if not reversed as to the lord. (g) All those estates which are called in Doomsday Book terræ regis Tenure by were manors belonging to the crown, being part of its ancient demesne; a ancient great portion of the lands comprised within those manors was in the hands demesne. of tenants who held the same of the crown by a peculiar species of socage tenure which has long been known by the appellation of ancient demesne (4 Inst. 269, 270), which can only subsist in manors of that sort. Whether ancient demesne or not can only be determined by a reference to Doomsday Book (Dyer, 250; Doe v. Roe, 2 Burr. 1046; see Scriven on Cop. 33–37, 386-388, 6th ed.; Com. Dig. Ancient Demesne; and Third Real Property Report, 12, 13). The tenants in ancient demesne were subject to certain restraints, and entitled to certain immunities. They could not bring or defend any real action touching their tenements, except in the lord's court. Hence the title to lands of that tenure are frequently involved in considerable difficulties, in consequence of fines or recoveries having by mistake been levied or suffered in the Court of Common Pleas (See the First Report of the Real Property Commissioners, pp. 28, 29). Defect of Jurisdiction. lands in suffered in 5. If at any time before or after the passing of this act a fine Fines and or common recovery shall have been levied or suffered, or shall recoveries of be levied or suffered in a superior court, of lands of the tenure ancient of ancient demesne, and subsequently to the levying or suffer- demesne ing thereof a fine or common recovery shall have been or shall levied or be levied or suffered of the same lands in the court of the lord the manor of the manor of which the lands had been previously parcel, court, after and the fine or common recovery levied or suffered in such other fines superior court shall not have been reversed previously to the in a superior levying of the fine or the suffering of the common recovery in the lord's court, then and in every such case the fine or common recovery levied or suffered in the lord's court shall, notwithstanding the alteration or change of the tenure by the fine or com- changed. mon recovery previously levied or suffered in the superior court, be as good, valid and binding as the same would have been if and recoveries court, shall be as valid as if the tenure had not been |