Law of For feit. 83. long, and their utility is so fully understood, that the determination of the Judges in Taltarum's case, so i Black. R. far from being considered as an unwarrantable 254. stretch of their authority, must on the contrary be Vide Willes acknowledged to have been a measure of great public Rep. 449. utility, and from which this country has derived infi nite advantage. I Burr. 115. bars an Estate Tail. 12. But whatever were the reasons on which the A Recovery validity of common recoveries was originally founded, it may now be laid down as a certain maxim or rule of law, which has prevailed for several centuries, that a common recovery is an assurance whereby all tenants in tail are enabled to bar their estates tail, and convert them into estates in fee. And in Mary Portington's case, 11 Ja. I. it was determined, that 10 Rep. 37 b. a judgment given against tenant in tail, upon a voucher and recompence in value, would bind the estate tail, notwithstanding the statute De donis conditionalibus; whether the recovery was upon good title or not. And that the judgment given in such a case for the tenant in tail to have in value, would bind the estate tail, although no recompence was had.* The following passage shows how strongly the Judges have always supported common recoveries. "At the Parliament held in the reign of the late Queen Elizabeth, in the great case between J. Vernon and Sir Edward Herbert, which was argued by learned counsel before the Lords in Parliament; there Hoord, an utter barrister of counsel, with Vernon (who was barred by a common recovery) rashly and with great ill will inveighed against common recoveries, not knowing the reason and foundation of them; who was with great gravity and some sharpness reproved by Sir James Dyer, then Chief Justice of the Common Pleas, who said he was not worthy to be of the profession of the law, who durst speak against common recoveries, which were the sinews of assurances of inheritances, and founded upon great reason and authority." 10 Rep. 40 a. ante, c. 3. § 34. 1 Inst. 351 b. Dyer, 35. pl. 28. 1 Inst. 349 b. 13. A common recovery is a good bar to the issue in tail, though the tenant in tail dies before the recovery is executed. 14. Thus, in Shelley's case, where a tenant in tail suffered a common recovery, and died on the same day, before the Court had awarded a writ of habere facias seisinam, it being doubted whether execution might be sued against the issue in tail, the majority of the Judges were of opinion that it might; for the right of the estate tail was bound by the judgment, and not by the execution. But if a recovery be had against a tenant in tail upon a false judgment, who dies before execution, in a scire facias against the issue in tail, he may avoid it. 15. An erroneous recovery, suffered by a tenant in 3 Rep. 3 a. tail, will bar his issue, as long as it continues in force. 10 38 a. - Tit. 2. c. 2. § 13. Machill v. Salk. 619. ante, c. 5. $ 22. Jennings' 10 Rep. 43. 16. It has been stated, that where a tenant in tail covenants to stand seised to the use of himself for life, remainder to his eldest son in tail, it is absolutely void, and does not alter the estate. And it was held, that after such a covenant, the tenant in tail might suffer a common recovery to other uses, which would be good. 17. It has been stated, that by the stat. 14 Eliz. c. 8. recoveries suffered by tenants for life are made void. But there is a proviso in that act, declaring that it shall not extend to recoveries by assent and agreement of the persons in remainder or reversion; so that such assent appeared of record in any of her Majesty's Courts. 18. A. being tenant for life, with remainder to her son in tail, a pracipe was brought against A., who vouched the son, who vouched over the common vouchee, by which means a common recovery was suffered. All the Judges were of opinion that the re covery was good, and within the proviso in the statute 14 Eliz. c. 8. 19. If a præcipe is brought against a tenant in tail, and his wife, where the husband is sole seised, and his wife has nothing, and they both vouch over in the usual manner, it will bar the estate tail. Plowd. 514. 20. Thus, where John Trevilian, being tenant in Eare v Snow, tail, suffered a common recovery, in which he and 18 Vin. Ab. his wife vouched over the common vouchee. It was 214. objected, that the recovery was not effectual to bar the estate tail, because the wife was named in the præcipe as joint tenant with her husband, and appeared and vouched as joint tenant; and the vouchee entered into the warranty, admitting that he ought to warrant to them, whereby he also admitted that the wife had an estate in the tenancy, and had cause to vouch; and as she ought to have the recompence in value by conclusion, there was therefore no reason why the issue in tail should be barred; for the reason that an estate tail is allowed to be barred by a common recovery is, on account of the recompence in value, which is, or by possibility may be rendered; and if the wife was entitled to the recompence in value, and not the issue in tail, then there was no reason why the issue should be barred. But the Judges were unanimously of opinion, that in this case the estate tail was barred, for it was expressly found by the verdict, that the wife had nothing in the tenements at the time of the recovery, but that the husband was sole seised in tail; and as he alone lost the tenancy, the recompence should go to him, and should be of the like estate with that he had lost. 21. It was formerly held, that where a præcipe was brought against a tenant for life and the re mainder-man, such a recovery would not bar the estate tail. 22. Thus, where a person was tenant for life, with remainder to his eldest son in tail, and a præcipe was brought against the father and son jointly, who vouched over the common vouchee. It was held by three Judges against one, that the estate tail of the son was not barred by the recovery; for the lands recovered in value must go in the same manner in which the estate that was lost would have gone; whereas, in the present case, there being a joint præcipe brought against the tenant for life and the person in remainder, they must be supposed to be joint tenants, and the judgment must be accordingly; that as the reason why a recovery bars an estate tail is on account of the recovery in value, and as it cannot be averred that the lands recovered in value shall go in any other manner than that which is stated in the record, it follows, that the issue in tail can have no recompence. 23. Mr. Pigot observes, that these reasons savour of a wonderful subtilty; and although no man would venture to suffer a recovery in this manner, yet if a question of this kind were now agitated, these distinctions would not be so easily admitted, since the courts of law adopt every mode of supporting common recoveries, as assurances generally used, for the conveyance of estates. And in the following case the Court of King's Bench was of opinion, that a recovery of this kind would bar an estate tail. 24. A tenant in tail and the person in remainder joined in making a tenant to the præcipe, who vouched them jointly, and they in the same manner vouched over the common vouchee. It was objected, that as the voucher was joint, the recovery in value must be joint, and so the tenant in tail and the person in remainder must recover moieties in value; whereas the whole was recovered against the tenant in tail, and consequently, to bind the issue, he ought to recover in value the whole; so that the recovery in value not being proportionable to the loss, it was void. Lord Chief Justice Holt delivered the opinion of the Court. As to the validity of the recovery in baring the estate tail, he observed, that if a præcipe was brought against a tenant in tail in possession and a stranger in an adversary action, and a recovery was had, it would be good: for when a præcipe was brought against several persons, it was not necessary that they all should be tenants of the freehold, for if any one of them had the freehold, it would be sufficient. And if the bringing a præcipe against a tenant in tail and a stranger would not vitiate a recovery, neither would a joint voucher; for when the vouchee comes in and enters into the warranty, he is as much tenant in law to the writ, as if the præcipe had been originally brought against him; and so the case of a stranger being vouched jointly with the person who is seised of the estate, did not differ from the case of a stranger being made tenant to the writ jointly with the person who had the freehold. If a tenant in tail conveyed the freehold to a third person, against whom a præcipe was brought, and he vouched a stranger, who vouched the tenant in tail, and the tenant in tail entered into the warranty, and vouched over the common vouchee; this would be a good recovery; for in an adversary action, if the tenant to the præcipe vouched a stranger who never had any estate in the land, there was no remedy for it; the demandant could not counterplead the voucher, until |