Dormer v. Parkhurst, 3 Atk. 135.

6 Brown Parl.

Ca. 351.

in tail, suffered a common recovery, which was held erroneous, for want of a good tenant to the præcipe; because, upon the death of the tenant pour auter vie, the freehold was cast upon the tenant for years, so that he, or some person claiming under him, ought to have been tenant to the præcipe.

21. So where lands were limited to Sir Robert Dormer for 99 years, if he should so long live, remainder to trustees and their heirs to preserve contingent remainders, remainder to his first and other sons in tail male. Sir Robert having issue a son, Fleetwood Dormer, they both joined in levying a fine to make a tenant to the præcipe, and then suffered a common recovery. The principal question in this case was, whether the freehold passed to the trustees, there being a considerable error in the words by which the remainder was limited to them? And the Court having determined, that the freehold did pass to the trustees, they concluded that the reco very was void; for if it was considered as the recovery of Robert Dormer, it was void, because he, being only tenant for years, could not give a freehold to another, without which there could not be a good tenant to the præcipe; for, to make him so, he must have a freehold in him. And, taking it as the recovery of Fleetwood the son, it could not be good, the freehold being in the trustees, and not in him, he having only a remainder expectant on the determination of their estate. And as to the fine levied by Robert Dormer and Fleetwood, it stood thus :Considered as the fine of Robert, it was void for want of a freehold; it being settled beyond all doubt, that a fine by tenant for years operates nothing, and was absolutely void: and, considered as the fine of

Fleetwood, it was equally so for want of a freehold in him; it being equally clear, that none can levy a fine but he who has a freehold in possession.

the Tenant

22. It appears to have been formerly held, that At what time the tenant to the præcipe should have the freehold must have the when the writ was sued out; but it was afterwards Freehold. 1 Mod. 218.

determined, that if he acquired the freehold at

any time before judgment was given, it would be

sufficient.

liams, Rep. temp. Holt, 614.

2 Salk. 568.

1 Ld. Raym 227. 475.

Carth. 472.

23. Thus, in ejectment, it appeared by a special Lacey v. Wilverdict, that the tenant to the præcipe had not acquired the freehold until after the teste of the writ of summoneas ad warrantizandum; so that he was not seised of the freehold at the return of the writ of entry. The Court of Common Pleas determined, that the recovery was valid. A writ of error was brought in the Court of King's Bench; and it was contended, on the part of the plaintiff in error, that the recovery was void; because, although a common recovery was a common assurance, yet it had forms peculiar to itself, which ought to be observed. In supposition of law, the tenant ought to have the lands at the time of suing out the writ, otherwise he cannot render them, as the writ supposes. The Court supposes the tenant to be seised of the lands; otherwise, to what purpose are the lands demanded from him? The voucher supposes that the tenant has seisin of the lands; for it would be absurd that the tenant should vouch another person to warrant lands to him which he has not. On the other side it was argued, that in all cases of adversary actions, although the person against whom the writ was brought was not tenant at the time of the teste, but became tenant before the return, it was sufficient. If the tenant to

the præcipe was not seised at the return of the writ, he might avoid it by pleading non-tenure; if instead of that he vouched over, then he admitted the writ to be good as to himself, but still the vouchee might counterplead the tenancy; if he did not, the recovery would be good by estoppel against the parties to it; however, in such a case, the tenant to the præcipe could not recover over in value, because he had lost nothing; but if the tenant acquired the lands after the voucher, and judgment was given against him, it would bind the land; and as the tenant had lost the land, he would recover in value against the vouchee: so that the recovery would be effectual. This being the law in adversary suits, it ought certainly to be so in common recoveries, which the Judges take notice of as common assurances, and which they will always support, if possible.

It was adjudged that this recovery was good; and Lord Chief Justice Holt said, the general rule was, that if the tenant to the præcipe acquired the freehold at any time before the judgment was given, it was sufficient; because it cannot then be said, that the recovery was had against a person who had nothing in the lands: and it was not enough in a counterplea of voucher to say, the voucher had nothing in the lands at the time of the voucher, without adding nec unquam postea; therefore a writ might be made good by a subsequent purchase, so might a voucher; which was the more reasonable, because the demandant might have a good cause of action, although the tenant had not the land when he comSambourn v. menced his suit; so that it was sufficient, in law, if Belke, the tenant had the land to render at any time before judgment.

1 Show. 347.

S. P.

24. By the statute 14 Geo. II. c. 20. § 6. it is enacted, that from and after the commencement of the said act every recovery already suffered, or thereafter to be suffered, shall be deemed good and valid to all intents and purposes, notwithstanding the fine, or deed or deeds, making the tenant to such writ, should be levied or executed after the time of the judgment given in such recovery, and the award of the writ of seisin as aforesaid; provided the same appear to be levied or executed before the end of the term, great session, session or assises, in which such recovery was suffered, and the persons joining in such recovery had a sufficient estate and power to suffer the same as aforesaid.

dem. Burton

25. In ejectment, the jury found a special verdict Goodright ex that Sarah Williams, being tenant in tail of the pre- v. Rigby, mises in question, conveyed the same by lease and re- H. Black. Rep. vol. 2. lease, dated the 19th and 20th of November 1778, 46. to a person to make him tenant to the præcipe, in order that a common recovery might be suffered, which was accordingly suffered, and a writ of seisin awarded, tested the 6th of the same month of November, returnable in 15 days of St. Martin; to which the sheriff returned, that he, by virtue of the said writ, on the 10th of November in the same term, did cause full seisin of the premises therein men-tioned to be delivered to the demandant. It was contended, that this recovery was void, for it appeared upon the record, that seisin was delivered by the sheriff ten days before the date of the conveyance to the tenant of the freehold, when, in fact, Sarah Williams was in possession of the lands; and that this case was not within the statute 14 Geo. II. c. 20. § 5. which arose from the fictitious relation VOL. V.

Pigot, 58.

Wilson on

Fines, 348.

Durnford and East's Rep. vol. 5. p. 177.

to the first day of the term, and was made for a dif ferent purpose; viz. to prevent recoveries being set aside where the tenant to the præcipe was created by deed executed after the award of the writ of seisin. The words of the 6th section of the act were, "executed after the time of the judgment given and the award of the writ of seisin." But there was a material difference between the award and the execution of the writ; and the 7th and 8th sections expressly provide, that the act should not be extended beyond its strict limits. The counsel on the other side were stopped by the Court, who said, that though there might have been some doubt, if it had been found a fact, that seisin was actually given on the 10th of November, yet the day named in the return was immaterial; for it was not necessary to name any par ticular day, and the return would have been good without it. All that was necessary was, that seisin should be delivered after the judgment, and before the return of the writ, and that the proceedings should all be in the same term. That those requisites were complied with in the present case, which was directly within the statute 14 Geo. II. § 5 & 6. As, therefore, the day mentioned in the sheriff's return was repugnant to the rest of the proceedings, it was to be rejected, and there must be judgment for the defendant.

A writ of error was brought upon this judgment in the Court of King's Bench. Lord Kenyon observed, that the sense of the clause in the statute 14 Geo. II. was, that the recovery should be valid, provided the deed making a tenant to the præcipe was executed before the end of the term in which the recovery was suffered; and it appeared upon this