the estate was given to her and the heirs of her body, which was an estate tail; nevertheless, the intention of the testator might restrain that estate of inheritance, and confine it to an estate for life only; and although it was insisted that the testator had restrained the estate of inheritance during her life, yet he had restrained it only upon future contingencies, the first of which was the event of her own death; but until that contingency happened, the inheritance was in her. The second was upon her leaving no children. It was manifest that the intention of the testator was, to prevent a common recovery being suffered; but where a testator intends that which by law he cannot do, the law will not allow his intention to take effect. If, therefore, Mary Edgar was tenant in tail to the hour of her death, nothing was so clear, as that all conditions limited upon such an estate tail were avoided by the common recovery which had been suffered; and the Court were of opinion, that Mary took an estate tail by the devise.

30. If a gift in tail be made, rendering a rent, and the tenant in tail suffers a recovery, it will not bar the rent, which will still remain as a collateral charge on the land, distrainable of common right; for since the tenant in tail took the land subject to that charge by the original donation, the recoveror who claims under him can only have the estate in the same manner as he who suffered the recovery had it. But if there had been a condition of re-entry, on the non-payment of the rent, it would have been destroyed.

31. Although a common recovery suffered by a tenant in tail bars all collateral conditions subsequent, and limitations over, yet a common recovery has this operation only when suffered by a tenant in tail; for a recovery suffered by a tenant in fee simple will not

Contingent

Remainders.
Tit. 16. c. 6.

§ 5.

Plunkett v.
Holmes,

1 Lev. 11.

Gilb. Uses,

133.

bar an executory estate, conditional limitation, or collateral condition.

32. A common recovery bars all contingent remainders depending on the estate whereof the recovery is suffered, because the recovery destroys the particular estate on which the contingent remainders depend.

33. Thus, where a person devised lands to his eldest son Thomas for life, and if he died without SirT.Ray. 28. issue living at the time of his death, then he devised the lands to another son and his heirs; but if Thomas had issue living at the time of his death, that then the fee should remain to the right heirs of Thomas for ever. Thomas entered upon the death of his father, and suffered a common recovery, and afterwards died without issue. It was resolved, that Thomas was tenant for life, with a contingent remainder in fee to his right heirs, and that the contingent remainder was destroyed by the recovery.

Loddington v. Kime,

1 L. Raym. 203.

Salk. 243.

3 Lev. 431.

34. So where lands were devised to A. for life, without impeachment of waste; and in case he should have any issue male, then to such issue male, and his heirs for ever; and if he should die without issue Fearne, 282. male, then to B. and his heirs for ever. A. entered, suffered a common recovery, and died without issue; and it was held, that the remainders over being contingent, were barred by the recovery. Another case arose on this will, in which the same point was determined by the House of Lords. And in the cases of Doe ex dem. Brown v. Holm, 3 Wilson's Reports 237, Goodright v. Dunham, Douglas 264, and Goodright v. Billington, id. 758, this doctrine is confirmed.

Carter v. Barnadiston, 1 P. W. 505.

Writs of Er

Fines.

35. A common recovery suffered after an erroneous ror to reverse fine, will bar the issue in tail from bringing a writ of Tit. 35. c. 14. error to reverse such fine; and even an erroneous recovery will bar a writ of error to reverse a fine,

until the recovery is reversed; because a common recovery with voucher bars every kind of right which the vouchee or his heirs can have to the land; but a void recovery is no bar.

Eliz. 388.

36. Thus, where R. Barton, being tenant in tail, Barton v. levied an erroneous fine, and afterwards a writ of Lever, Cro. entry was brought against the cognizee, who appeared and vouched over R. Barton, and he vouched over the common vouchee. After the death of R. Barton, the issue in tail brought a writ of error to reverse the fine, to which the recovery was pleaded in bar. And it was resolved, that when tenant in tail levies an erroneous fine, he hath yet a right to the land, which, by his entry into the warranty, and recovering thereby an intended recompence in value, is barred. For although tenant in tail cannot by deed release errors to bar the issue in tail, yet as by fine or recovery he may bar the estate tail itself, so may he bar the writ of error; and when he enters into the warranty and vouches over, and hath recompence, he is in by his warranty of all estates, and the recompence in value is a sufficient bar to all estates and rights which he had in him.

Is an Estop

pel on Record.

Pigot, 123.

ante, c. 2.

56.

SECTION 1.

THE judgment in a common recovery being of equal force with that which is obtained in an adversary suit, operates as an estoppel on record against all those who are parties to it, and concludes 10 Mod. 45. them from averring any thing against it. But a common recovery, when suffered of an estate tail, will not operate as an estoppel against the issue in tail, the remainder-men, or reversioner.

2. A common recovery suffered by a tenant in tail lets in all his preceding incumbrances, and renders valid all the acts of ownership which he has exercised over the estate tail. So that if a tenant in tail makes a lease not warranted by the statute 32 Hen. VIII., or acknowledges a judgment or recognizance, and afterwards suffers a common recovery; it will operate as a confirmation of these charges, which were before defeasible by the issue. For the recoveror acquires an estate in fee simple, derived out of the estate tail; and therefore all those acts which bound the tenant

in tail, will also bind the recoveror, who cannot aver that the person against whom he recovered had but an estate tail. It is therefore extremely dangerous for a tenant in tail who has made leases, acknowledged judgments, or incumbered his estate tail in any other manner, to suffer a common recovery; because all those incumbrances will thereby become valid, and take place before any charge which is made on the lands, by or after the recovery.

119.

3. Although a recovery be suffered for a particular purpose, yet it will confirm all prior incumbrances. Thus, in the case of Goddard v. Complin, the follow- 1 Chan. Ca. ing question was put :-Tenant in tail mortgages for years, and afterwards, in consideration of marriage, suffers a recovery, for the purpose of settling a jointure on his wife. Whether this recovery should enure to make good the mortgage, it being only designed for establishing the marriage settlement? It was answered, that if there had been no recovery, there could have been no jointure, nor could the wife have avoided the mortgage, for she was in by the act of her husband, and no subsequent act of the husband could have avoided the mortgage. It was also said, that if a tenant in tail confesses a judgment, &c. and suffers a recovery to any collateral purpose, the recovery shall enure to make good all his precedent acts and incumbrances.

4. Where a tenant in tail makes any conveyance or settlement of his estate tail, which is not binding on his issue; if he afterwards suffers a common recovery, it will enure to make good the preceding conveyance or settlement.

5. Gerard Walker the father, by settlement on his Cheney v. marriage, conveyed an estate to the use of himself for Hall, Amb. Rep. 526. life, remainder to the first and other sons of the marriage in tail. In 1733 the son, on his marriage, con