3 & 4 Will. 4, the tenure had not been altered or changed; and that in every c. 74, s. 5. Fines and recoveries shall not be invalid in other cases, though levied courts whose jurisdictions extend to the lands therein comprised. or suffered in may not other case where any fine or common recovery shall at any time before the passing of this act have been levied or suffered in a court whose jurisdiction does not extend to the lands of which such fine or recovery shall have been levied or suffered, such fine or recovery shall not be invalid in consequence of its having been levied or suffered in such court, and such court shall be deemed a court of sufficient jurisdiction for all the purposes of such fine or recovery; and in every other case where persons shall have assumed to hold courts in which fines or common recoveries have been levied or suffered, and such courts shall be unlawful or held without due authority, the fines or common recoveries which at any time before the passing of this act may have been levied or suffered in such unlawful or unauthorized courts shall not be invalid in consequence of their having been levied or suffered therein, and such courts shall be deemed courts of sufficient jurisdiction for all the purposes of such fines or recoveries. Tenure of ancient demesne, where suspended or destroyed by fine or recovery in a superior court, restored in cases in which the lord of the Tenure of Ancient Demesne restored. 6. In every case in which at any time, either before or after the passing of this act, the tenure or* ancient demesne has been or shall be suspended or destroyed by the levying of a fine, or the suffering of a common recovery of lands of that tenure in a superior court, and the lord of the manor of which the lands at the time of levying such fine or suffering such recovery were parcel, shall not reverse the same before the first day of January, one thousand eight hundred and thirty-four, and shall not by any law in force on the first day of this session of parliament be rights of the barred of his right to reverse the same, such lands, provided within the last twenty years immediately preceding the first day of January, one thousand eight hundred and thirty-four, the rights of the lord of the manor of which they shall have been within twenty parcel shall in any manner have been acknowledged or recognized as to the same lands, shall, from the said first day of January, one thousand eight hundred and thirty-four, again become parcel of the said manor, and be subject to the same heriots, rents and services, as they would have been subject to if such fine or recovery had not been levied or suffered; and no writ of deceit for the reversal of any fine or common recovery shall be brought after the thirty-first day of December, one thousand eight hundred and thirty-three. manor shall have been recognized years. * Lege of. IV. THE AMENDMENT OF FINES AND RECOVERIES, AND THE Errors in Fines. 3 & 4 Will. 4, c. 74, s. 7. amendment. 7. If it shall be apparent, from the deed declaring the uses Fines made of any fine already levied or hereafter to be levied, that there is valid without in the indentures, record, or any of the proceedings of such fine, any error in the name of the conusor or conusee of such fine, or any misdescription or omission of lands intended to have been passed by such fine, then and in every such case the fine, without any amendment of the indentures, record or proceedings in which such error, misdescription or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed thereby, in the same manner as it would have done if there had been no such error, misdescription or omission (h). (h) Amendment was refused where the error in the fine was cured by Amendment this section (Life Association v. Siddal, 3 D. F. & J. 58; Lockington v. of fines. Shipley, 1 Bing. N. C. 355). Fines were amended in the following cases: Totton v. Vincent (5 Bing. N. C. 626); Lloyd v. Nicholas (4 Bing. N. C. 633); Price v. Watkins (6 Jur. 170); Evans v. Davis (5 Bing. N. Č. 229). Errors in Recoveries. made valid without amendment. 8. If it shall be apparent, from the deed making the tenant Recoveries to the writ of entry or other writ for suffering a common recovery already suffered or hereafter to be suffered, that there is in the exemplification, record, or any of the proceedings of such recovery any error in the name of the tenant, demandant, or vouchee in such recovery, or any misdescription or omission of lands intended to have been passed by such recovery, then and in every such case the recovery, without any amendment of the exemplification, record or proceedings in which such error, misdescription or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed thereby, in the same manner as it would have done if there had been no such error, misdescription or omission (i). (1) A recovery was amended under this section by inserting a latent Amendment fact (Re Twisden, 4 Bing. N. C. 253); but amendment was refused when of recoveries. the defect was remedied by this section (Wickens v. Windus, 9 C. B. 711; Re Watkins, 9 Dowl. P. C. 58; Re Evans, 2 Scott's N. R. 83). A warrant of attorney cannot be amended (Lamont, 3 Scott, 666). See further, as to the amendment of fines and recoveries, Cruise, Dig. tit. 35, c. 5; tit. 36, c. 6; 2 Wms. Saund. 94. 3 & 4 Will. 4, c. 74, s. 9. Saving jurisdiction in cases not pro vided for. Recoveries made valid in certain cases where bar gain and sale is not duly inrolled. Recoveries invalid in consequence of there not being proper writs of entry made valid in certain cases. tenants to the Equitable fines and recoveries. Requisities to make good tenant to the præcipe. Jurisdiction to amend saved. 9. Provided always, that nothing in this act contained shall lessen or take away the jurisdiction of any court to amend any fine or common recovery, or any proceeding therein, in cases not provided for by this act. Defect of Tenant to the Præcipe, Non-inrolment of Bargain and Sale. 10. No common recovery already suffered or hereafter to be suffered shall be invalid in consequence of the neglect to inrol in due time a bargain and sale purporting to make the tenant to the writ of entry or other writ for suffering such recovery, provided such recovery would have been valid if the bargain and sale purporting to make the tenant to the writ had been duly enrolled. Defect of Legal Tenant to Præcipe. 11. No common recovery already suffered or hereafter to be suffered shall be invalid in consequence of any person in whom an estate at law was outstanding having omitted to make the tenant to the writ of entry or other writ for suffering such recovery, provided the person who was the owner of or had power to dispose of an estate in possession, not being less than an estate for life or lives in the whole of the rents and profits of the lands in which such estate at law was outstanding, or the ultimate surplus of such rents and profits, after payment of any charges thereout, and whether any surplus after payment of such charges shall actually remain or not, shall, within the time limited for making the tenant to the writ for suffering such recovery, have conveyed or disposed of such estate in possession to the tenant to such writ (A); and an estate shall be deemed to be an estate in possession notwithstanding there shall be subsisting prior thereto any lease for lives or years, absolute or determinable, upon which a rent is reserved, or any term of years upon which no rent is reserved. (k) Fines and recoveries were levied or suffered of equitable estates, and had, with a few exceptions, the same operation as they would have had if the estates had been legal; but neither a fine nor a recovery of an equitable estate produced a forfeiture of a particular estate, or destroyed contingent interests, except in the instance of a recovery suffered by an equitable tenant in tail, which would bar the entail, and all interests to take effect on the determination or in derogation thereof. Fines and recoveries of equitable estates must have been levied and suffered in the same courts, and with the same formalities, as those of legal estates; but there was some difference between legal and equitable recoveries, so far as regarded the tenant to the præcipe (See First Real Property Report, 1829, p. 29). In order to make a good tenant to the præcipe there should have been a legal estate for life, with a legal remainder in tail, or an equitable estate for life, with an equitable remainder in tail (Shapland v. Smith, 1 Br. C. C. 75; Salvin v. Thornton, Id. 73, n.; see Iveson v. Pearman, 3 B. & C. 811; 4 B. & Ad. 55; 1 Collect. Jurid. 214; Doe v. Ewart, 7 Ád. & Ell. 670). A recovery suffered by an equitable tenant for life with a legal remainder in tail was void (3 B. & Cr. 799). But an equitable remainder in tail might have been barred although the person making the tenant to the præcipe had the legal estate (3 Ves. 125). Where a legal tenant in tail conveyed his estate to a trustee or mortgagee, the concurrence of his alienee in making a tenant to the præcipe was necessary. But this rule was held not applicable by analogy to trust estates (Nouaille v. Greenwood, Turn. & Russ. 26; see Casborne v. Scarfe, 1 Atk. 603). In equitable recoveries the person who made the tenant to the præcipe was the person who had the real equitable ownership (Re Dudson, 8 Ch. Div. 632; see also Penny v. Allen, 7 D. M. & G. 409; Adams v. Adams, 6 Q. B. 860). As to the necessity of possession by the tenant to the præcipe, see Grenville v. Blyth (16 Ves. 224); Pigott v. Waller (7 Ves. 122); Taylor v. Horde (1 Burr. 60; Cowp. 689; 6 Br. P. C. 633, Toml. ed.; see Butl. Co. Litt. 330 b, n.); Doe v. Lyons (3_B. & C. 388). A dowress who had not entered was not a necessary party to a recovery (4 Br. C. C. 525; see Gilb. Ten. 26; 5 Cru. Dig. p. 246, pl. 18); nor a person holding a freehold lease (14 Geo. 2, c. 20). A recovery might be void in part for want of a good tenant to the præcipe as to that part (Row v. Power, 2 Bos. & Pull. 1; Moody v. Moody, Ambl. 649; see Co. Litt. 187; 2 Br. C. C. 180; Winchester's Case, 3 Rep. 1; Collyer v. Mason, 2 Brod. & Bing. 685). 3 & 4 Will. 4, c. 74, s. 11. Remedial Clauses qualified. this act. 12. Provided always, that where any fine or common recovery Certain cases shall before the passing of this act have been wholly reversed, in which fines such fine or recovery shall not be rendered valid by this act; shall not be and where any fine or common recovery shall before the passing made valid by of this act have been reversed as to some only of the parties thereto, or as to some only of the lands therein comprised, such fine or recovery shall not be rendered valid by this act so far as the same shall have been reversed; and where any person who would have been barred by any fine or common recovery, if valid, shall before the passing of this act have had any dealings with the lands comprised in such fine or recovery, on the faith of the same being invalid, such fine or recovery shall not be rendered valid by this act; and this act shall not render valid any fine or common recovery as to lands of which any person shall at the time of the passing of this act be in possession in respect of any estate which the fine or common recovery, if valid, would have barred, nor any fine or common recovery which, before the passing of this act, any court of competent jurisdiction shall have refused to amend; nor shall this act prejudice or affect any proceedings at law or in equity, pending at the time of the passing of this act, in which the validity of such fine or recovery shall be in question between the party claiming under such fine or recovery, and the party claiming adversely thereto; and such fine or recovery, if the result of such proceedings shall be to invalidate the same, shall not be rendered valid by this act; and if such proceedings shall abate c. 74, s. 12. 3 & 4 Will. 4, or become defective in consequence of the death of the party claiming under or adversely to such fine or recovery, any person who but for this act would have a right of action or suit by reason of the invalidity of such fine or recovery shall retain such right, so that he commence proceedings within six calendar months after the death of such party (1). (1) See as to this section Davies v. D'Arcy (3 Ir. C. L. Rep. N. S. 617; 4 Ir. Ch. Rep. N. S. 87; Sugd. R. P. Stat. 2nd ed. 187). V. CUSTODY OF THE RECORDS OF FINES AND RECOVERIES. [Sect. 13 provided for the custody of the records of fines and recoveries which are now kept at the Central Office of the Supreme Court (See 5 & 6 Will. 4, c. 82; 42 & 43 Vict. c. 78, s. 5). As to fines and recoveries in the Courts of Great Session in Wales, see 5 Vict. c. 32; Doe v. Price, 16 M. & W. 603.] Estates tail, and estates expectant thereon, no longer barrable by warranty. VI. ESTATES TAIL NOT BARRABLE BY WARRANTY. 14. All warranties of lands which after the thirty-first day of December, one thousand eight hundred and thirty-three, shall be made or entered into by any tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose 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. 172. Power after the 31st of December, 1833, to dispose of lands entailed in fee simple, or for a less VII. DISPOSITION OF LANDS ENTAILED. General enabling Clause. 15. After the thirty-first day of December, one thousand eight hundred and thirty-three, every actual tenant in tail, 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 estate, saving 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 the rights of certain persons. |