Altham v. Gilb. R. 16. 1 Salk. 676. Holt. 733. and the statute of uses and although, since the statute of uses, the use results back when no use is declared, yet the intent of the parties always guided the use, and there could be no resulting use against the express intent of the parties; so that whenever the use results, it is because the parties intend it. Now, in a case of this kind, the evident intention of the parties is to make a tenant to the præcipe, which appears upon the record, by the writ of entry being brought against the cognizee; and therefore he must have such an estate as will make him a good tenant to the præcipe. These principles have been fully established in the following cases. 45. A tenant in tail levied a fine to J. S. and his heirs, in order to make him tenant to the præcipe in a common recovery, but no use was declared on the 11 Mod. 210. fine. Seven years after, a writ of entry was brought against J. S., who vouched the cognizor of the fine, and a common recovery was thus suffered. The question was, whether J. S. had an estate of freehold in him at the time of the recovery. It was contended, that although the legal estate passed by the fine to J. S., yet as no use was declared, it immediately resulted back to the original owner of the estate; so that J. S. had no estate in the lands when the recovery was suffered, and therefore was not a good tenant to the præcipe. But it was held by Lord Holt and all the other Judges, that when a fine was levied, or a feoffment made to a man and his heirs, the estate was in the cognizee or feoffee, not as an use, but by the common law, and might be averred to be so. And as in this case the intention of the fine plainly appeared to be for the purpose of making a tenant to the præcipe, the use and estate should be allowed to have vested in J. S. and not to have resulted to the cognizor of the fine. v. Peake, 46. In a subsequent case, Lord Ch. Just. Parker Thrustout said, that a fine being levied, and no use declared, 1 Stra. 12. and a recovery having been immediately after suffered of the same lands; the writ of entry being brought against the cognizee of the fine, showed that the intent of levying the fine was, to make a tenant to the præcipe. 47. It has been often doubted, whether a husband, A Husband seised Jure Uxoris may alone make a Tenant to the Præcipe without Fine. seised jure uxoris, could make a tenant to the præcipe of his wife's land, without her joining him in a fine. This doubt probably arose from the words of Lord Talbot, in the case of Robinson v.Cummins, as reported by Mr. Forrester; for there his Lordship is said Pa. 167. to have expressed himself thus:-" It hath been said, that a feme tenant in tail, and her husband, cannot make a tenant to the præcipe without a fine; but whatever may be the case where a husband is merely seised in right of his wife, is not necessary for me to determine; because in this case Sir J. Robinson did, by his intermarriage, become entitled to an estate by the curtesy; and therefore he alone, without his wife's joining, might have made, a good tenant to the præcipe." 48. In an opinion given by the late by Mr. Booth Cases and Opinions, on this subject, he observes, that this report of Lord vol. 1. 436. Talbot's argument is incorrect; that he himself was vol. 2. 132. present at the hearing of that case, and had a very full note of it; and that Lord Talbot's words were these:"If I should lay it down as a rule, that where the wife is entitled to an estate tail in possession, her husband and she could not make a tenant to the præcipe, for the docking of the entail, without a fine, because the law is supposed to appoint no other 273 b. 1 Roll. Ab. method by which a woman under coverture can convey her freehold, but by fine, I should shake many of the common recoveries of the kingdom; for whatever may have been the practice of some overcautious conveyancers, yet I believe it hath often been held that the husband alone may, by deed only, and without any fine levied by the wife, convey a sufficient freehold to the grantee to make him tenant to the præcipe." 49. This latter opinion seems to be perfectly consistent with the principles of the common law; for 1 Inst. 351 a. Lord Coke says-" If a man taketh to wife a woman who is seised in fee, he gaineth by the intermarriage an estate of freehold in her right; which estate is sufficient to work a remitter."-It must be the same where a man marries a woman seised in tail; for a feme covert cannot have a seisin distinct from her husband. And on this ground it has been frequently determined, that the husband's conveyance is sufficient to transfer a good estate of freehold, during the joint lives of the husband and wife. Mr. Pigot was of the same opinion, having laid it down, that a husband seised jointly with his wife, whether by moieties or entireties, or seised only in right of his wife, might create an estate of freehold during the coverture, and thereby make a good tenant to the præcipe. And this point was expressly determined in the following case, stated by Serjeant Roll. Pa. 72. Roll. Ab. tit. Recov. A. pl. 4. 50. A husband seised in right of his wife for life, remainder in tail to B., remainder to C., bargained and sold the land to another, against whom a præcipe was brought, who vouched him in remainder; and so a common recovery was suffered. Adjudged, that recovery barred the remainder, because the bargainee was a good tenant to the præcipe. the 51. It has been a frequent practice, ever since the Feoffment. introduction of common recoveries, to make a feoff ment, with livery of seisin, of the lands, to the person against whom the writ of entry was intended to be brought, it being a common opinion, that a feoffiment was the most secure conveyance by which a tenant to the precipe could be made ; because if the feoffor Vide Tit. 32. was in possession at the time when the livery of c. 4. § 33. seisin was made, the feoffment was supposed to pass a good estate of freehold, either by right or by wrong, that is, by disseisin; but this doctrine has in some respects been denied in the following case. 52. In an ejectment for lands in Gloucestershire, the jury found a special verdict, that Sir Robert Atkyns, senior, being tenant for life, with remainder to his first and other sons, reversion in fee to himself, with a power of appointing a jointure to any aftertaken wife, married Ann Dacres, and, pursuant to his power, limited the lands in question to the said Ann Dacres for her life as a jointure. Sir Robert Atkyns, senior, made his will duly attested, and devised his reversion in fee, expectant on the estate tail limited to his first and other sons, to Mr. Atkyns, the lessor of the plaintiff. Sir Robert Atkyns, senior, died, leaving a son, Sir Robert Atkyns, junior, who entered on all the estate, except that part which was limited to Lady Atkyns for her jointure, on which she entered. Lady Atkyns being in possession of these lands, an ejectment was brought against her in the Common Pleas by John Philips, on the several demises of Sir Robert Atkyns, junior, and Joseph Walker, for the recovery of the premises in question, on the ground, that Sir Robert Atkyns, senior, had no power of appointing her a jointure; and the same was tried at the bar of the Court of Common Pleas, Taylor ex dem. Atkyns v. Horde, Burr. 60. 6 BrownPar Cas. 633. when a verdict was found for the plaintiff, on which judgment was entered, and a writ of habere facias possessionem was sued out and executed; and Sir Robert Atkyns, junior, entered into, and was in possession of the premises. Sir Robert Atkyns, junior, being thus in possession during the lifetime of Lady Atkyns, made a feoffment of the premises, with livery of seisin, to James Earle, in order to make him tenant to the præcipe, for the purpose of suffering a common recovery, which it was thereby declared should enure to the use of Sir Robert Atkyns, junior, his heirs and assigns for ever. A common recovery was accordingly suffered, in which the writ of entry was brought against James Earle, the feoffee, who vouched Sir Robert Atkyns, junior, and his wife, and they vouched over the common vouchee. Sir Robert Atkyns, junior, continued in possession, from the time of the recovery until November 1711, when he died without issue. Lady Atkyns, the jointress, brought an ejectment against Robert Atkyns, the heir at law of Sir Robert Atkyns, junior, for the recovery of her jointure; the cause having been tried at the bar of the Court of Common Pleas, and it appearing evidently to the Court, that Sir Robert Atkyns, senior, had a power of appointing a jointure to Lady Atkyns, which he had duly executed, and that the former verdict was clearly wrong, a general verdict was given for the plaintiff, on which judgment was entered, and Lady Atkyns was restored to the possession of the premises, and continued seised of them until the time of her death. The principal question in this case was, whether the recovery was well suffered? which entirely depended upon, whether James Earle, the feoffee of Sir Robert Atkyns, was a good tenant to the præcipe. |