Strangers, how affected by fine. Co.Litt.372.

Co. Litt. 251. 2 Lev. 52.

Common recovery.

and 38 Hen. 8, c. 36. By 4 Hen. 7, (the statute of non-claim) the right of all strangers was bound by a fine, unless they claimed, by way of action or lawful entry within five years after proclamations made: except feme coverts, infants and persons under legal disabilities, who had five years allowed them and their heirs after the removal of their disibilities (b). By 32 Hen. 8, c. 36, a fine levied by any person of full age to whom or to whose ancestors lands had been entailed, was a perpetual bar to them and their heirs, claiming by force of such entail: unless the fine was levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestor, assigned to her in tail for her jointure (c); or unless it was of lands entailed by act of parliament or of letters patent, and whereof the reversion belonged to the crown (d).

Persons having a remainder or reversion had five years allowed them to claim in from the time that such right accrued; but all persons whatsoever were barred by force of the statute of non-claim, if within the prescribed time they neglected to claim, or by 4 Ann. c. 16, they did not bring an action to try the right within one year after making such claim, and prosecute the same with effect (b). In order to make a fine valid the parties to it must have had some interest or estate in the lands. If a tenant for life levied a fine, it was an absolute forfeiture of his estate to the remainder man or reversioner, if claimed in proper time, but if the claim was not made within five years after the term expired, the estate was for ever barred by the fine.

A common recovery (e) was so far like a fine, that it was a suit or action either actual or fictitious; and in it the lands were recovered against the tenant of the freehold; which recovery being a supposed adjudication of the right, bound all persons and vested a fee and absolute fee simple in the recoveror.

If A., the tenant of the freehold, was desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee simple to B., B. brought an action against him for the lands; and he accordingly sued out a writ,

(b) The power of barring adverse rights by non claim is of course put an end to by the abolition of fines.

(c) See post, note (ƒ) p. 234.

(d) By 3 & 4 Wm. 4, c. 74, s. 18, the power of disposition thereby given does not extend to tenants in tail, who by 34 & 35 Hen. 8, intituled, "An act to embar feigned recovery of lands, wherein the king is in reversion," or by any other act, are restrained from barring their estates tail, or to tenants in tail, after possibility of issue extinct.

(e) By 3 & 4 Wm. 4, c. 74, common recoveries were abolished, estates tail and estates expectant thereon are no longer barrable by warranty; but by this act (which see ante, p. 138) a more simple mode of assurance is substituted.

called a præcipe quod reddat, in which he, as demandant, alleged that A. the defendant, had no legal title to the land, but that he came into possession of it after one C. had turned the demandant out of it. The subsequent proceedings were made up into award or recovery roll, in which the writ or complaint of the demandant was first recited: whereupon A. the tenant, appeared, and called upon one D., who was supposed, at the original purchase, to have warranted the title to the tenant, and thereupon he prayed that the said D. might be called in to defend the title so warranted. This was called the voucher, or calling of D. to warranty, and D. was called the vouchee. Upon this D., the vouchee, appeared, was impleaded, and defended the title; whereupon B., the demandant, desired leave of the court to imparl, or confer with the vouchee in private; which being allowed him, he then returned to court, but D., the vouchee, disappeared, or made default; when judgment was given for B. the demandant, then called the recoveror, to recover the lands in question against the tenant A., who was then the recoveree, and who had judgment to recover of D. lands of equal value, in recompense for the lands so warranted by him, and lost by his default; which was agreeable to the doctrine of warranty mentioned in the preceding chapter. This was called the recompense or recovery in value. But D. having no lands of his own, being usually the crier of the court (who from being frequently thus vouched was called the common vouchee) it is plain that A. had only a nominal recompense for his lands, which became absolutely vested in the recoveror by judgment of law. So that this collusive recovery operated as a conveyance in fee simple from A. the tenant in tail, to B. the purchasor. The recovery here described was with a single voucher only; Recovery with but sometimes it was with double, treble, or farther voucher, as the exigency of the case required. And, indeed, it was usual to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person against whom the præcipe was brought; and then he vouched the tenant in tail, who vouched over the common vouchee. For if a recovery was had immediately against tenant in tail, it barred only such estate in the premises of which he was then actually seised: whereas if the recovery was had against another person, and the tenant in tail was vouched, it barred every latent right and interest which he had in the lands recovered. If A. therefore was tenant of the freehold in possession, and John Barker was tenant in tail in remainder, here A. first vouched Barker, who vouched D. the common vouchee, who was the last

double vouch

er.

Dr. & Stud.

b. 1, dial, 26.

The effect of

common recoveries.

Pigot, 28.

person vouched, and always made default; whereby B. the demandant, recovered the land against the tenant A., and A. recovered a recompense of equal value against Barker, the first vouchee; who recovered the like against D. the common vouchee, against whom such ideal recovery in value was always ultimately awarded. The supposed recompense in value is the reason why the issue in tail was held to be barred by a common recovery; but the courts of justice considered common recoveries as a formal mode of conveyance, by which tenant in tail was enabled to aliene his lands. The force and effect of common recoveries may appear from what has been said, to have been an absolute bar, not only of all estates tail, but of all remainders and reversions expectant on the determination of such estates. But by 34 & 35 Hen. 8, c. 20, no recovery had against tenant in tail of the king's gift, whereof the remainder or reversion was in the king was a bar to such estate tail, or the remainder or reversion of the crown. And by 11 Hen. 7, c. 20, no woman, after her husband's death, could suffer a recovery of lands settled on her by her husband, or settled on her husband and her by any of his ancestors (ƒ) And by 14 Eliz. c. 8, no tenant for life of any sort could suffer a recovery so as to bind them in remainder or reversion, but he might do so in conjunction with the remainder man in tail. In all recoveries it is necessary that the recoveree or tenant to the præcipe should have been actually seised of the freehold, else the recovery is void. But by 14 Geo. 2, c. 20, though the legal freehold was vested in lessees, yet those who were entitled to the next freehold estate in remainder or reversion might make a good tenant to the præcipe; and though the deed or fine which created such tenant was subsequent to the judgment of recovery, yet, if it was in the same term, the recovery is valid; and though the recovery itself was not regularly entered on record, yet the deed to make a tenant to the præcipe, and declare the uses of the recovery is, after a possession of twenty years, sufficient evidence on behalf of a purchasor for valuable consideration that such recovery was duly suffered (g).

(ƒ) The stat. 11 Hen. 7, c. 20, relative to tenants in tail, ex provisione viri, is repealed by 3 & 4 Wm. 4, c. 74, s. 17, except as to lands comprised in any settlement made before the act, as to which the same assent to any disposition of them under the act as was before required to a fine or recovery of them is still necessary.

(g) By 3 & 4 Wm. 4, c. 74, s. 11, no recovery 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, provided the person, who was the owner of an estate for life, or lives, shall within the time limited for making the tenant to the writ, have conveyed

Deeds to lead declare uses of coveries.

fines and re

Deeds to lead and declare the uses of fines and recoveries; these, if made previous to the fine or recovery, are called deeds to lead the uses; if subsequent, deeds to declare them. A fine or recovery levied or suffered without any good consideration, and without any uses declared, enured only to the use of him who suffered it. If A., tenant in tail, with reversion Dyer, 18. to himself in fee, would have settled his estate on B. for life, remainder to C. in tail, remainder to D. in fee; he, after making the settlement proposed, covenanted to levy a fine (or if there were any intermediate remainders to suffer a recovery) to E., and directed that the same should enure to the uses in such settlement mentioned; this is a deed to lead the uses of a fine or recovery. Or if a fine or recovery, was had, without any previous settlement, and a deed was afterwards made beween the parties, declaring the uses to which the same should be applied, this by 4 & 5 Anne, c. 16, is equally good as if it had been levied or suffered in consequence of a deed preceding it and directing its operation to those particular uses.

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

of alienation of copyhold

lands.

ASSURANCES by special custom are confined to copyhold lands and such customary estates as are holden in ancient demesne, or in manors of a similar nature, which being originally no more than tenancies in pure or privileged villeinage, were never alienable by deed; for as that might tend to defeat the lord of his sigionary, it is therefore a forfeiture of a copyhold (a). Nor are they transferable by matter of record even Litt, s. 74. in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in

such estate in possession, to the tenant to such writ; and an estate shall be deemed 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 terms of years upon which no rent is reserved. And by s. 7, if it shall be apparent from the deed making the tenant to the writ for suffering a common recovery, that there is in any of the proceedings of such recovery any error, then the recovery, without any amendment of the proceedings in which such error shall have occurred, shall be held to have passed all the lands intended to have been passed thereby as it would have done if there had been no such error.

(a) See ante, cap. 18, p. 197.

Surrender.

some manors, by special custom, recoveries may be suffered of copyholds (b).

Surrender, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. The tenant comes to the steward either in court, or (if the custom permits) out of court; and there by delivering up a rod, or other symbol, resigns into the hands of the lord, by the hands and acceptance of his steward all his interest in the estate; in trust to be again granted out by the lord, to such persons, and for such uses, as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next, or some subsequent court, the jury or homage must present, and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court.

Upon such surrender in court, or upon presentment of a surrender made out of court, the lord, by his steward, grants the same land again to cestui que use, to hold by the ancient rents and customary services; and admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty. No only method of feoffment or grant has any operation upon a copyhold estate. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copyhold, I must

Surrender the

conveying copyholds.

(b) By 3 & 4 Wm. 4, c. 74, s. 50, all the previous clauses in the act, so far as circumcumstances, and the different tenures will admit, are made applicable to copyholds, except that a disposition thereof under the act by a tenant in tail, whose estate shall be an estate at law, shall be made by surrender; a disposition thereof by a tenant in tail, whose estate shall be merely equitable, may be made either by surrender, or by a deed, as provided in the act. By s. 51, the deed of consent by the protector must be entered on the court rolls. By s. 52, if the protector's consent is not given by deed, then a memorandum of his consent, signed by the protector (if the surrender be made out of court), is to be entered on the court rolls of the manor; and if the surrender be in court, a statement that such consent was given, together with the surrender, is to be entered on the court rolls. By s. 53, power is given to equitable tenants of tail of copyholds to dispose of their lands by deed in the same manner as they could have done if the lands had been of freehold tenure, the deed of disposition must be entered on the court-rolls, otherwise it will be void against any subsequent assurance entered on the court rolls. But by s. 54, inrolment is not necessary as to copyholds.