3 P. Wms. 171. Powers Appendant and in Gross. King v. 2 Lev. 58. Saville v. Blackett, 1 P. Wins. 777. 20. In the above case Lord Alvanley said, that though a legal remainder could not be affected by an equitable recovery, yet the converse of that proposition was not true; for a legal estate in the tenant to the præcipe was no objection. The very point was determined in the case of Marwood v. Turner. 21. Where a person has a power appendant or in gross, if he suffers a common recovery of the lands to which the power relates, it will bar and destroy it; because the lands are supposed to be recovered by a right which is paramount to that of the person who created the power, and which therefore over-reaches such power. 22. Lands were devised to Bernard Melling for life, and after his death to the issue of his body by a second wife, he being then married to his first wife; and for default of such issue, to another person, provided that B. Melling might settle a jointure on his second wife. B. Melling entered on the death of the devisor, and, during the life of his first wife, suffered a common recovery, to the use of himself and his heirs. It was agreed in the Exchequer Chamber, 1. That B. Melling took an estate tail by the devise. 2o. That the power to make a jointure was destroyed by the recovery. And it was laid down by Lord Hale, that admitting B. Melling had but an estate for life, the power was destroyed. 23. A settlement was made of lands to the use of A. for ninety-nine years, if he should so long live; remainder to trustees during the life of A. to preserve contingent remainders, remainder over, with a power to A. to charge the lands with divers sums of money. A., the trustees, and the remainder-man in tail, joined in suffering a common recovery, and declaring new uses thereof, viz. to the use of A. for life, with remainder over. It was determined, that the joining of A. in making the new settlement, without reserving a power to charge the premises with the said money, had destroyed that power which A. had of charging; for the contrary construction would enable him to defeat his own grant. Powers 24. Powers collateral to the land are not barred by But not a common recovery, for the same reason that they are not barred by a fine. 25. A common recovery suffered by a tenant in tail, bars all collateral conditions and conditional limitations created to take place on the determination of such estate tail. collateral. Tit.35. c. 10. § 58. Conditions and condi tional Limitations. Fearne's Ex Dev. 75. 4th ed. Hodson, 26. R. Mosely covenanted to levy a fine of certain lands to the use of himself and the heirs male of his Benson v. body, remainder in tail to several others: provided 1 Mod. 108. that if there should be a failure of issue male of his 2 Lev. 28. body, and Dame Elizabeth were dead, and Ann Mosely was married, or of the age of twenty-one years, then she should have 2001. per annum for ten years. R. Mosely died, leaving issue Sir Ed. Mosely, who made a lease for 1,000 years, and then suffered a recovery of the estate tail, and died without issue male. The contingencies all happened; and the question was, whether the rent-charge of 2001. was barred by the recovery? Lord Hale said, if tenant in tail grants a rentcharge, and suffers a common recovery, the rentcharge will not be avoided: so that if tenant in tail be, rendering a rent, a recovery will not bar that, though it doth a reversion. But the reason of this case is, because the estate of him that suffers the recovery is charged with the rent. Therefore, if there ante, c. 7. $31. Goodear v. 1 Lev. 35. 1 Keb. 73. Page v. be a limitation of a use upon condition, and cestui que use suffers a recovery, that will not destroy the condition, the estate being charged with it; for the recoveror can have the estate only as he that suffered the recovery had it: therefore, so long as any one comes in by that recovery, he comes in in continuance of the estate tail; and coming in so, he is liable to all the charges of the tenant in tail. Now, what is the reason why tenant in tail suffering a common recovery, a rent by him in remainder shall be. barred? The reason is, because the recoveror comes in in the continuance of that estate that is not subject to the rent, but is above all those charges; and no recompence can come to such a rent. The difference between this case and Capel's, say they, is, that there the charge arose subsequent, but here the charge arises precedent. But I say the charge arises precedent to the remainder, but subsequent to the estate tail; for it is not to take effect till the estate tail be determined. A man made a gift in tail, determinable upon his non-payment of 1,000l., remainder over. The tenant in tail before the day of payment suffered a common recovery, and did not pay the money; yet because he was tenant in tail when he suffered the recovery, by that he had barred all. If there be tenant in tail, reserving rent, a common recovery will not bar it: so if a condition be for payment of rent, it will not bar it: but if a condition be for doing a collateral thing, it is a bar. And so if tenant in tail be, with a limitation so long as such a tree shall stand, a common recovery will bar that limitation. Judgment accordingly. 27. Nicholas Searle devised lands to his niece Mary Bryant, and the heirs male of her body, upon condition and provided she intermarried and had issue male by a person surnamed Searle; and, in default of both these conditions, he devised the lands to Elizabeth in the same manner. Mary Bryant married one Cliff, and with him levied a fine, and suffered a recovery of the lands, in which she and her husband were vouched. It was adjudged by the whole Court ; 1st. That the estate devised to Mary was a good estate in special tail; that is, to her and the heirs male of her body begotten by a Searle. 2d. That the words upon condition, &c. though express words of condition, should be taken to be words of limitation. 3d. That the estate tail of Mary did not cease by marrying a person whose name was not Searle, because she might possibly survive her first husband, and afterwards marry a person of the name of Searle. 4th. That if the estate had been devised to Mary, and the heirs male of her body, by a Searle to be begotten, provided, and upon condition, that if she married any other person but a Searle, the estate should go over, a common recovery suffered before marriage would bar the estate tail and remainders. And, the Court took a difference between a collateral condition, and a condition that runs with the land; for if a donor reserves a rent with a condition to re-enter, a recovery will not bar it; aliter, if 1 Mod. 108. the condition be to re-enter for non-payment of a 111. sum in gross. 2 Lev. 28. 4 Burr. 1929. 28. So, where lands were devised to several persons Gulliver v. successively in tail, with a proviso, that whenever the Ashby, estates devised should come to any of the persons therein named, they should take upon them the name of W. only, but there was no devise over. The first person to whom the lands were devised in tail, suffered a common recovery of the estate tail, in which he was vouched, and vouched over, and never took the name of W.; the person who was next in re, Amb. Rep. 328. Driver ex mainder entered for a breach of the proviso, on account of the first devisee's not having changed his name. It was agreed by the whole Court, that if this proviso were considered as a condition, it was collateral and subsequent, and was therefore well barred by the recovery. 29. Devereux Edgar being seised of the premises dem. Edgar in question, devised them as follows:-" I give and v. Edgar, Cowper, 379. bequeath unto my daughter Temperance Edgar all that my farm or estate called the Breed Farm, &c. to hold the same from and after the death of my wife, to the said Temperance my daughter, and to the heirs of her body lawfully begotten; and for want of such heirs, to my right heirs for ever. Item, I give and bequeath unto my daughter Mary Edgar all that my farm, &c. to have and to hold to the said Mary, and to the heirs of her body lawfully to be begotten; and herein my mind and will is further declared, that in case either of my said daughters Temperance or Mary shall happen to die, or depart this life, single, married, or widows, not leaving children or child living at their decease legally begotten, that then her gift, legacy, or bequest herein, or estate given her by this my will, shall be entirely void as to inheritance of heirs, and of none effect; and the estate so given her so dying without heirs of her body, shall descend and go to my heir male and his heirs male." Mary Edgar suffered a recovery of the premises in question, to the use of herself in fee, and afterwards died unmarried. The question was, whether the recovery suffered by Mary Edgar barred the limitation over? Lord Mansfield said, the validity of the recovery suffered by Mary depended upon whether she was tenant in tail, or tenant for life of the estate thus devised to her. Now |