but also the reversion, and all leases, charges, and incumbrances granted or made by the person in reversion; and that there was no difference between a reversion and a remainder, expectant upon an estate tail, in that respect. 32. So where A. was tenant in tail, remainder to Cholmley's Case, B. in fee. B. granted his remainder to a stranger 2 Rep. 52. for life, with remainder to the Queen in fee, upon condition. A. the tenant in tail suffered a common recovery; and the question was, Whether the recovery barred the estate for life, and the remainder upon condition to the Queen? It was resolved, that the recovery not only barred the estate tail of A., but also the estate for life in remainder; and that the remainder in fee limited to the Queen was void. Benson and Sir T. Ray. 33. Rowland Morley being seised in fee, made a Hudson v. feoffment to the use of himself, and the heirs male of his body, remainder in tail to several other persons, 2 Lev. 28. with a proviso, that if Rowland and Edward his son 236. and Lady Elizabeth Morley should happen to die, and there should be no issue male of Rowland, that then Ann Morley should have a rent-charge out of those lands of 2001. a year, until she received the sum of 2000l. Edward Morley, the last issue male of Rowland Morley, made a lease for 1000 years, and afterwards levied a fine and suffered a recovery, and died without issue. The question was, Whether the rent-charge of 2001. a year, limited to Ann Morley, was barred by this recovery? It was argued, that the rent-charge was only a contingent use, which was not in esse when the recovery was suffered: so that the recompence in value could never extend to it, and therefore that it ought not to be barred. As to Capel's case it was observed, that the rent was barred, because it issued out of the remainder in tail, 1 Mod. 111. Lit. $649. Herbert v. Binion, Poph. 100. Barton v. Lever, infra, c. 8. which was barred by the recovery. But it was resolved, that the rent-charge was barred by the recovery, because all the estates charged with the rent were barred; and that Capel's case ruled the present case; for in that case all the objections were made which arose in the present case. And Sir Matthew Hale observed, that about the 9 Eliz. it was doubted whether, if a remainder for years were limited after an estate tail, it could be barred by a recovery suf fered of the estate tail; because the lease for years being only a chattel, no recompence in value could go to it; but it was now universally allowed, that such a lease was barred by a recovery. 34. If lands be given in tail, determinable on the donor's payment of 1,000l. with a remainder over; and before the day of payment the tenant in tail suffers a common recovery; the right of the donor to the 1,000l. and also the remainder over, will be well barred. 35. If a tenant in tail is disseised, and releases to the disseisor, the estate tail is in abeyance; yet the tenant in tail may suffer a common recovery; which will bar the estate tail, the remainders, and the reversion. 36. If a tenant in tail levies a fine with proclamaIRoll. R.223. tions, and afterwards suffers a common recovery; although the estate tail was destroyed by the fine, yet still the recovery will bar the remainders and reversion depending on the estate tail. The reason infra, § 45. usually given for this determination is, that when the tenant in tail is vouched, and comes in upon the voucher, he comes in of all the estates that were ever in him; and as the estate tail was once in him, it is 2 Roll. Ab. therefore barred. Serjeant Roll says, the reason of 394. the determination is, because a common recovery is a common assurance. It has also been said that the tenant in tail, after levying a fine, has still a scintilla juris in him, which enables him to bar the remainders. 37. In the case of a tenant in tail levying a fine, and then dying, leaving issue; it seems to be a doubtful point whether such issue can, by suffering a common recovery, bar the remainders and reversion depending on the estate tail. No case of this kind has, I believe, ever been judicially determined; but it is highly probable that if a case of this nature arose, 2 Atk. 201. Fearne's Op. the Judges would determine, that the remainders 442. depending on such an estate might be barred by a common recovery, in which the issue in tail was vouched; for otherwise such remainders and reversion must continue to subsist as a future estate or interest, to take effect in possession upon the remote event of a general failure of issue of the tenant in tail; incapable of being barred or destroyed by any means whatever. This would be a perpetuity to a greater degree than what is allowed by our law, or should be permitted in any commercial country. It may also be observed, that if a tenant in tail, after levying a fine, has still in him a scintilla juris, sufficient to enable him to suffer a common recovery, that scintilla juris will descend to the issue in tail, and therefore they will be as well enabled to suffer a common recovery as their ancestor was. 394. 398. 38. It has been determined that if a tenant in tail 2 Roll. Ab. be attainted of treason, and afterwards suffers a common recovery, it will not bar the remainders, or 1 Keb. 30. reversion; because a person attainted is not capable of taking any thing but for the benefit of the King; and consequently the recompence in value must go to the King; so that the persons in remainder and Pa. 73. Vide infra, c. 10. And an Entail of a Rentcharge. Smith v. 12 Mod. 513. Weeks v. Peach, Lut. 1224. the reversioner can have no benefit from it, and therefore are not barred. Besides, recoveries being common assurances, the recovery of a person attainted must be void, in the same manner as any other conveyance of his would have been. Mr. Pigot, however, seems to have thought that there was such a scintilla juris in the tenant in tail, after an attainder, that by a common recovery he might bar his issue, the remainders and reversion; for if the King should pardon the party, and restore the land, he might bar the entail, although the attainder remained in force. 39. An equitable or trust estate tail, and all equitable remainders expectant thereon, and also the equitable reversion, may be barred by a common recovery, of which an account will be given in the next chapter. 40. Estates tail of the gift of the Crown may be barred by a common recovery, unless they have been given as a reward for services; but it appears doubtful whether a reversion in the Crown, expectant upon the determination of an estate tail, is barred by a common recovery. 41. We have seen that a common recovery may be suffered of a rent-charge issuing out of land, and if such a rent be granted in tail, with a remainder over, a recovery suffered by the tenant in tail will bar the entail, and also the remainder. 42. Thus, where a person devised a rent of £50 · per annum, to be issuing out of land, to his son and his heirs; and if the said son should die without heirs male of his body, then he devised it over. The son suffered a common recovery of this rent, and died without issue male. Lord Ch. J. Bridgman and all the other Judges of the Court of C. P. were of opinion, that the recovery was good, and the remainder well barred. This judgment was affirmed in the Court of K. B. 43. A distinction has, however, been established Chaplin v. Chaplin, between a grant of a rent-charge in tail, with a re- 3P.Wms.229. mainder over of the same rent-charge in fee, and a Pigot, 97. grant of a rent-charge in tail, without any subsequent limitation of it in fee: in the first case, the tenant in tail acquires an estate in fee simple in the rent-charge, by the operation of the common recovery; but in the second, he only acquires a base fee, determinable on his decease and failure of issue. Voucher. 44. It has been stated that a common recovery Effect of Recoveries with may be suffered with single, double, or treble voucher; single and and Pigot says, if a recovery is suffered without any double voucher, as if judgment is given upon default, con- Pa. 108. fession, or nient dedire of the tenant, it does not bind the issue in tail; because they have no recompence, and are not estopped by their father's judgment, as they claim paramount the estoppel, per formam doni; and therefore they may falsify such a recovery. Bro. Ab. tit. 45. A recovery with single voucher, that is, where the præcipe is brought against the tenant in tail himself, who immediately vouches over the common vouchee, is a good bar to the estate whereof the tenant in tail is in possession at the time of the recovery, but is no bar to any other estate. A reco- Moor, 256. very with double voucher, that is, where the tenant Recov.19.30. in tail is vouched, and vouches over the common vouchee, is a good bar, not only to the estate whereof he is then in possession, but also to all other estates in the land to which he has any right, although such estates be divested out of him and discontinued. A recovery with treble voucher is used to make a perpetual bar of the estate whereof the tenant to the præcipe was seised, and also of every |