tations in the settlement. The husband suffered a recovery of these lands to the use of himself and his Vide 2 Ver- heirs. The Lord Chancellor was of opinion, that the non,233.251. covenant did not bind the land so as to defeat the recovery. But it being pressed, that they might be at liberty to sue the executor, and recover out of the personal assets, an issue was directed to try what the wife and the issue of the marriage were damnified by the breach of this covenant. King v. An Heir in to inspect &c. 65. Where an heir in tail is disinherited by a common recovery, and seeks for relief in a court of Title Deeds, equity, the recovery, together with the deeds for making a tenant to the præcipe, will be directed to be brought before a Master, that the person thus barred may have an opportunity of inspecting them, and of seeing whether any thing can be discovered for his advantage. 2 P. Wms. 177. Bettison v. Farringdon, 3 P. Wms. 363. A SECTION 1. COMMON recovery differs very much in its operation from a fine, for it has not the effect. of establishing an undoubted title after a certain number of years. A fine was originally introduced into our law as a public and solemn mode of alienation, and its force in barring entails arose from two statutes, made some centuries after. A common recovery was first introduced, for the purpose of barring entails only, and therefore it has not so extensive and powerful an effect as a fine. But in consequence of the principle, that where a recovery is suffered, the recoveror thereby acquires a new estate in fee simple, it follows that a recovery has several other effects besides that of barring estates tail. 2. All those who are parties to a recovery are Parties. bound by it, because, being a matter of record, they infra, c. 9. § 1. ante, c. 5. $7. Married Women. are estopped to aver any thing against it; except infants, and that only where the recovery is reversed during their minority. 3. Where a married woman joins with her husTit. 35.c. 10. band in suffering a common recovery of her own estate, she will be bound by it as effectually, and for the same reason, as if she had joined with him in levying a fine. Incledon v. Northcote, 3 Atk. 430. 2 Inst. 347. 4. Thus it was held by Lord Hardwicke, that where a married woman, having the trust of a term in her, joined her husband in suffering a common recovery of the lands out of which the term was created, she was thereby barred of all her claim to it; for she came in by voucher, in privity of all her estate, legal and equitable. 5. By the statute Westm. 2, c. 4, reciting, that where a husband was impleaded and gave up the land demanded to his adversary by covin, after the death of the husband, the Justices should award the wife her dower; but that where the land was lost by default, there was a difference of opinion: it was therefore declared, that in both cases the widow should be heard, and if it was alleged against her that her husband lost the land by judgment, and it was found that it was by default, then that the tenant should show that he had right, and if he could show that the husband had no right, he should go quit, and the wife recover nothing; but if he could not show that, the wife should recover her dower. 6. It follows from this statute, that a common recovery, suffered by a husband alone, will not bar his wife of dower; and it was much doubted whether a woman was barred of dower by joining her husband in suffering a common recovery; nor was the point. settled till the reign of Queen Elizabeth. § 20. 7. Thus in the case of Eare v. Snow it was said ante, c. 7. that the wife was named in the præcipe only to be 2 Rep. 74 a. barred of her dower; to which purpose women were named in common recoveries had against their husbands; and the usage in this case was to be regarded, for in such cases it had always been the intent of the parties, before that time, that the wife should be barred of her dower. 8. Pigot says he heard some learned men question this, because the woman has then no estate in esse: but the same might be said against a fine, and the common recovery estops her as party, and disaffirms her husband's title to the lands, of which she was dowable. 66. Estates. Tit. 12. c. 2. 9. It has been stated that a trust or equitable Trust estate may be entailed as well as a legal one; and it has been long settled that a common recovery suffered by a cestui que trust in tail, who is in possession under the trustees, will effectually bar such estate tail, and all equitable remainders, and the equitable reversion depending thereon; although there be no legal tenant to the præcipe. Champer noon, 78. 1P. Wins. 91. 10. Sir Francis North purchased certain lands in North v. Essex from R. Allington, who was cestui que trust in tail of them, with remainders over, and had suffered 2Cha.Ca. 63. a common recovery; but there was no legal tenant i Vern. 13. to the præcipe, the freehold being in the trustees, who were not parties. The question was, whether the remainders expectant on the estate tail were barred by this recovery. The decree was in these words: -"His Lordship, upon long debate of the matter, on hearing what was alleged by the counsel on either side touching the same, declared that he was fully satisfied that the said recovery did sufficiently bar all remainders depending upon the estate tail of R. Allington, who suffered the same; it being a 2 Cha. Ca. 64. Fearne's Opinions, 330. Burnaby v. 266. general rule, that any legal conveyance or assurance by a cestui que trust shall have the same effect and operation upon a trust, as it should have had upon the estate in law, in case the trustees had executed their trust; otherwise trustees, by refusing, or not being able to execute their trust, might hinder the tenant in tail of that liberty to dispose of his estate, and bar the remainders, which the law gives him as incident to his estate; which would be manifestly inconvenient, and tend to the introduction of perpetuities." 11. In recoveries of this kind there must be an equitable tenant to the præcipe; that is, the trust estate must be conveyed to a third person, against whom the writ must be brought, in the same manner as in recoveries of legal estates. 12. If there be a cestui que trust for life, before the cestui que trust in tail; so that in case the legal estate had been conveyed according to the trusts, the tenant in tail could not bar the estate tail by a common recovery; there the cestui que trust in tail cannot bar his estate tail by a recovery. 13. It was formerly held that a feme covert to whom a trust estate was limited for life, for her separate use, could not make a good equitable tenant to the præcipe, without joining with her husband in a fine. But in a modern case, where an estate was devised to trustees and their heirs, in trust to receive and pay over the rents and profits to a married woman for life, for her separate use; and after her decease, to convey the estate to her daughters, as tenants in common in tail; it was held by Lord Alvanley that the wife took an equitable estate for life; and that a conveyance from her and her husband, by lease and release, was sufficient to make a good equitable tenant to the præcipe. |