formed by his counsel or agents, that he had no such power over the settled parts, without obtaining a surrender of the life estate; he might perhaps be satisfied that he could not obtain a surrender of the life estate; or he might have attempted to obtain it, and failed in such attempt. If the mere fact of a remainder-man in tail's suffering a recovery was alone sufficient to ground a presumption of a surrender of the life estate, it would be in the power of every remainder-man in tail to bar the estate tail, notwithstanding the tenant for life should absolutely refuse to join with him in suffering a recovery; it is therefore necessary that there should be facts and circumstances to ground a presumption of such a surrender upon: whereas, in the present case, it is so far from being reasonable to presume that there was such a surrender from the jointress, that there are, on the contrary, many reasons to induce a suspicion that there was not such a surrender; she might have more regard for James Bridges than for George; she might think it wrong or unkind to hurt the reversioner; or even whim and peevishness might prevent her from interfering: there is no defining the various reasons she might have to hinder her from surrendering her life estate for such purpose. Mr. George Bridges being therefore only tenant in tail in remainder, and the life estate under the same settlement still subsisting at the time of his suffering the recovery, it is clear that he had no power to alien or to bar; and there is nothing from whence to presume a surrender of the life estate, to enable him to do so. "If he had any power to bar or alien, then indeed no presumption could have been too large, in order to prevent slips in legal forms and methods of con veyance, and to effectuate the intention of a person who had a legal right to do such an act. No argument can be drawn in the present case from length of time, because the ejectment was brought immediately upon the death of the jointress." The Court were all clear and unanimous, that there was no colour for objecting to the Judge's direction. At the sitting of the Court the next morning, Lord Mansfield mentioned this case again: He said he had looked into his own note of the case of Warren on the demise of Webb against Grenville, where the recovery was of forty years standing; and the Court. did lay it down in that case, "that, after a recovery of forty years standing, they would, without any other circumstances, presume a conditional surrender to have been made by the tenant for life;" and they relied upon 1 Ventr. 257, and Mr. Pigot's book, p. 41. But his Lordship observed, that there are other circumstances, in the case in Ventris; and there is nothing in Pigot to justify this general position. And he added, that in the case then at the bar, the Court did (as he had taken it down) admit as evidence the entry in the attorney's book, as has been mentioned. He said, he was rather more strongly of opinion than he was yesterday, "that in the present case there was no ground for a presumption that there was any surrender by the tenant for life." Here were two particular reasons against making any such presumption. One was, that there did not appear to have been any intention in the remainder-man in tail to suffer a recovery of these particular lands: the other, that here was no possession at all, under this recovery; but, on the contrary, the ejectment was brought, and the validity of the recovery put into litigation, immediately after the death of the tenant for life. If the eldest son, who has a remainder in tail under a family settlement, should privately suffer a common recovery, and his father live many years afterwards, it might as well be argued, "that length of time from the date of the recovery should induce a presumption that the father surrendered his estate for life.” And his Lordship declared himself as clear, that if there had been a long possession by the tenant in tail after the death of the tenant for life, though such a possession might be ascribed to the entail, the presumption ought to have been made, upon the ground of acquiescence under it, and the probability arising therefrom, "that the parties knew that the recovery was not defective." Rules of property ought (his Lordship said) to be generally known, and not to be left to loose notes, which rather serve to confound principles, than to confirm them. He therefore proposed to have a conference with all the Judges upon this case which proposal did not arise, he said, from any doubt about the matter (for he was more confirmed in his opinion than he was yesterday), but for the sake of having so considerable a rule of property settled, and of rendering it notorious and public. For which purpose, he (at first) ordered it to stand over till next term: but afterwards, upon its being agreed by all the parties, that, in Mr. Grenville's case, there was a great number of years during which the tenant in tail had been in possession after the death of the tenant for life; and upon the now defendant's counsel candidly declaring "that they themselves were fully satisfied with the present opinion of the Court," he retracted his proposal, and said he would not trouble the Judges with it, since the counsel were so candid as to acquiesce entirely in the opinion that the Court had already intimated. How a Te nant to the Præcipe may be made. By Fine. His Lordship further added, that he would have it understood, that possession of the tenant in tail, after the death of the tenant for life, does leave a ground of presumption "that there was a surrender." But, in the present case, there was no possession after the death of the tenant for life: the ejectment was brought immediately. 38. When the person who means to suffer a common recovery is in actual possession of the freehold, he may convey it to any stranger, for the purpose of making him tenant to the præcipe, by fine, by feoffment, grant, bargain and sale enrolled, or lease and release. 39. It is sometimes thought expedient to make a tenant to the præcipe by fine; not only on account of the notoriety of this species of assurance, but because even an erroneous fine gives such an estate to the cognizee as is sufficient to make him a good tenant to the præcipe. And Lord Hale has said, that 3 Keb. 597. the cognizee of a fine Oct. Purif. would be a good tenant to the præcipe, in a recovery suffered the same day; and the Court would presume a priority to support a conveyance. Lloyd v. 40. A writ of error was brought against a person who was made cognizee of a fine, in order to make him tenant to the præcipe; and after the recovery. had been suffered, the fine was reversed for error; yet the recovery was held good; because there was a sufficient tenant to the præcipe at the time. 41. But if the fine was in itself absolutely void; as if the person who levied it had no estate of freehold in possession of the land; there the recovery would be void, because in that case the fine passed no estate. 42. Thus in the case of Dormer v. Parkhurst, where ante, f 21. a fine was levied by a tenant for years and a remainder-man in tail, to make a tenant to the præcipe; it was determined that the recovery was void, because none of the parties to the fine had an estate of freehold in possession in the lands. Burton, 43. In a celebrated case which arose in Ireland, Hume v. and which will be stated in a subsequent chapter, it infra, c. 11. was held by the House of Lords there; contrary however to the opinion of a majority of the Judges, and of the Lord Chancellor; that where a fine was levied by the Earl of Ely for the purpose of making a tenant to the præcipe, and a recovery was suffered thereon in the same term, the fine should be deemed conclusive evidence of the sanity of the cognizor, and of his capacity to suffer the recovery; the fine and recovery being considered as one assurance. Use be declared. Tit. 11. c.4. $ 20. 44. It has been already stated, that where a fine is Though no levied without any consideration or declaration of use, the use and legal estate immediately result to the cognizor of the fine, so that the cognizee has only a seisin of an instant. In consequence of this doctrine, where a fine was levied in order to make a 3 Keb. 113. tenant to the præcipe, and a writ of entry was brought against the cognizee of the fine, on which a common Pigot, 52. recovery was suffered, it was doubted whether such a recovery was good; for as no use was declared on the fine, it was said that the use and estate immediately resulted back to the cognizor; so that the cognizee had no estate of freehold when the writ of was brought, nor ever afterwards. Mr. Pigot held, Id. 54. however, that such a recovery would be good; for at common law, if a fine was levied without consideration, as in a fine there needs none, the cognizee was tenant to all writs, until the statute of pernors of profits, VOL. V. A a entry |