4. Thus, although a recovery be a good bar to a re- Pigot, 137. mainder for years, limited to commence after the determination of an estate tail; yet if such term be limited to arise before the estate tail, it will not be barred by a recovery suffered of the estate tail. life Lake, 718. 5. A. being tenant for life, remainder to B. in tail, Pledgard v. B. made a lease for years, to commence after the Cro. Eliz. death of the tenant for life. The tenant for afterwards suffered a common recovery, in which the remainder-man in tail was vouched: and it was determined that the term for years was not barred by the recovery, but that the lessee might falsify it. Poph. 5. note. 6. If a person is tenant for life, with remainder to 1 Inst. 204 b. trustees to preserve contingent remainders, remainder to his first and other sons in tail male, remainder to his daughters as tenants in common in tail, remainder over; and having a daughter, he joins with her in suffering a common recovery; it will be good against the tenant for life, and his daughter, and the remainder-man; but the estates tail limited to the first and other sons, being prior to the estate of the daughter, and being supported by the limitation to the trustees, will not be affected by the recovery. Dower or 7. It was formerly a practice for women, having Estates in estates in dower, or jointures, to alienate them by Jointures. fine or recovery; and so give them away from their 1 Inst. 326 b. husband's family. To prevent this practice, a statute was passed, 11 Hen. VII. c. 20, by which it was enacted, "That any woman who had any estate in dower, or for term of her life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, &c. of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband or of his ancestors, and shall hereafter, being sole, or with any after-taken husband, discontinue, alien, release, or confirm with warranty, or by covin suffer any recovery of the same; that all such recoveries, discontinuances, &c. shall be utterly void and of no effect; and it shall be lawful for the person in remainder or reversion to enter immediately.” 9. In the statute 32 Hen. VIII. c. 36. by which tenants in tail were enabled to bar their issue by fine, is the following clause: "Provided always, that this act, nor any thing herein contained, shall extend to bar or exclude the lawful entry, title, or interest of any heir or heirs, person or persons, in or to any manors, &c. by reason of any fine or fines levied by any woman after the death of her husband, contrary to the intent of the statute 11 Hen. VII., of any manors, &c. of the inheritance or purchase of the said husband, or of any of his ancestors, assigned to any such woman in dower, for term of life or in tail. 10. These statutes having been made to prevent an injury, have always been construed liberally ; and therefore every kind of estate created by the fine or recovery of a jointress, of lands held by her as a jointure, is void against the heir of the husband. 11. Thus where a tenant in tail, who was a jointress within the stat. 11 Hen. VII., accepted a fine sur cognizance de droit come ceo, &c. from a stranger, who granted and rendered the lands to the jointress for 100 years; it was adjudged that this was a forfeiture; for otherwise the intention of the statute might, by practices of this kind, be entirely defeated. 12. With respect to the estates which have been deemed to be comprehended within this act, the same liberality of construction has been adopted; and therefore it has been determined, that whenever an estate has been derived, either from the husband himself, or from any of his ancestors, it is protected by these statutes. 13. Thus where the ancestor of the husband made a feoffment in fee, upon condition that the feoffees should reconvey to the husband and wife in tail. This was adjudged to be such an estate as was intended by the statute. Cro. Eliz. 14. So where a man and a woman, being joint Laughter v. tenants in fee simple of a manor, intermarried, and Humphrey, afterwards levied a fine thereof to a stranger, who 524. - rendered it to them in tail. After the death of the husband, the wife married again, second husband levied a fine of it. and she and her that the fine was void, as to the moiety which had originally been the estate of the husband, because it was protected by this statute. v. Strotton, Plowd. 300. 15. In the same manner where one brother, in con- Sharrington sideration of a marriage had between his brother and M., covenanted to stand seised to the use of himself for life, and after to the use of his brother and his wife, for their lives; this was adjudged to be a jointure within the statute 11 Hen. VII., as moving from the ancestor of the husband. 16. Although lands are settled in consideration of money paid by the wife or her friends; yet if the marriage appears to have also constituted a part of the consideration, the estate will then be considered as within the statute 11 Hen. VII. Beaumont, 17. Thus, where a grandfather bargained and sold Villars v. lands to J. N. for thirty years, remainder to himself Dyer, 186 a. and his wife for life, remainder to his son for life, Bendl. 29. remainder to his grandson and one S., the daughter Moo. 93. of J. N., and the heirs of their two bodies begotten; p.231. Keilw. 208 a. Vide infra, Kirkham v. after which followed these words: "for the which manor, bargain, and other the premises, the said J. N. covenants to pay the said sum of 70l. at certain days, &c." The son afterwards married S., who survived him, and with a second husband levied a fine of those lands. The jury further found, dehors the indenture, that the indenture and bargain and sale were as well in consideration of the marriage as of the money. Vide Copland It was held by three Judges against Dyer, that the fine was void; for they expounded the words " given Cro.Car. 244. by the ancestors, &c." to be any lands assured to the woman in jointure, either for money (as few marriages are made without it), or else freely. v. Platt, Sir W. Jones, 254. Jenk. 310. 2 Vern. 489. 18. A trust estate, or an equity of redemption, is 1Ab.Eq.220. within the statute 11 Hen. VII. as well as a legal estate; for uses are expressly mentioned in that statute; and a trust is now what a use was then. Eyston v. 19. With respect to the estates which are not comprehended within the statute 11 Hen. VII., as the object of it was only to prevent women from alienating those lands which were settled on them by their husbands, it therefore does not extend to any lands which were originally the property of the wife, or which were derived from any of her ancestors. 20. Thus, where husband and wife, seised of lands Plowd. 463. in right of the wife, levied a fine sur cognizance 1 Inst. 366 a. de droit come ceo, and took back an estate to the husband and wife in tail general, remainder to the heirs of the wife. The husband died, leaving issue a son; the wife married a second husband, with whom she joined in levying another fine; on which the son by the first husband entered for a forfeiture by the 11 Hen. VII. It was determined that the last fine was no forfeiture by this statute; for as the estate was originally the property of the wife, it would be unreasonable to restrain her from disposing of it, and quite foreign to the intent of the act; for although it might, within the letter of the act, be considered as the purchase of the first husband, by the first fine, yet it was not so in reality, as the lands were originally derived from the wife. 21. Husband and wife sold lands which were the Palmer, 217. estate of the wife, and purchased other lands with the money, which were settled on the husband and wife in tail. This was agreed arguendo to be a jointure within the statute, because the money was a chattel vested in the husband, which he might have disposed of as he pleased; and therefore when he laid it out. in the purchase of lands, the law will consider them as purchased by the husband. 22. A voluntary gift by a stranger to a husband and wife, is not within this statute. 23. The bishop of Exeter made a voluntary gift of lands to one Turner his servant and Sybill his wife, and to the heirs of their two bodies. The husband died, and the wife levied a fine of those lands. It was resolved that this was not a jointure within the statute 11 Hen. VII.; for the lands did not come from the husband, nor from any of his ancestors. 24. If lands are limited by a husband, or by any of his ancestors, to the wife in tail general, without any limitation to the issue or heirs of the husband, such estate is not protected by the stat. 11 Hen. VII.; because the object of that statute was to prevent wives from prejudicing the issue or heirs of their former husbands; but where no remainder is limited to such persons, no prejudice can be done to them. 25. Thus, where a man seised in fee devised lands to his wife in tail general, remainder over to a stranger; after the husband's death, the wife VOL. V. LI Ward v. 137. Yelv. 101. Foster v. Cro. Eliz. 2. 1 Leon. 261. |