CHAP. IX.

Of some other Effects of a Recovery.

CHAP. X.

What Persons, Estates, and Interests are not barred by a Recovery.

ARECOVERY, in its most extensive sense, is the Recoverie

restoration of a former right, by the solemn judgment of a court of justice; and judgments, whether obtained after a real defence made by the tenant, 2 Inst. 321. or upon his default, or feint plea, have equally the same force and efficacy to bind the right of the land so recovered, and to vest a free and absolute estate in fee simple in the recoveror.

148,

2. A common recovery is a judgment obtained Bac. Tracts, in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in such suit.

Plowd. 43.

3. A common recovery departs so far from the original modes of transferring property, and is in itself so complicated and artificial, that if we had no historical evidence of the time when it was first adopted among the common assurances of the law, we might safely pronounce it to be in some respects a modern invention. But the fact is well known that we are indebted to the ingenuity of the ecclesiastics for the introduction of common recoveries, in order to evade the statutes of mortmain, by which they were prohibited from purchasing, or receiving under pretence of a free gift, any lands or tenements whatever.

4. To effect this purpose the religious houses used to set up a fictitious title to the lands intended to be given or sold, and brought an action against the tenant to recover them; the tenant by collusion made no defence, whereby judgment was given for the religious house, which then recovered the lands by sen tence of law, upon a supposed prior title. And although proceedings of this kind were carried on by a 2 Inst. 429. species of conventional fraud, between the religious house and the tenant of the land; yet the Judges held, that in these cases the religious communities did not appropriate such lands per titulum doni vel alterius alienationis, as the statute de religiosis, 7 Edw. I. expresses it; and that they were not within the words, aut alio quorismodo arte vel ingenio. For as recoveries were prosecuted in a course of law, they were presumed to be just; and it was accordingly held that they were not within the statute.

5. The notoriety and evidence which attended feigned recoveries was such, that they were not used by the ecclesiastics alone, but were soon adopted by lay persons, as a common mode of transferring lands. Thus it appears by the statute of Gloucester 6 Edw.I.

that feigned recoveries were at that time in constant

use; for it is provided by the 11th chapter of that sta- 2 Inst. 321. tute, that a termor for years might falsify a feigned recovery, suffered by the owner of the inheritance.

6. The want of moderation on the part of the ecclesiastics counteracted the effects of their ingenuity; being gratified by the success of their practices, they had such frequent recourse to feigned recoveries, as to occasion a parliamentary interference; for, by the statute of Westminster 2, 13 Edw. I. c. 32. 2 Inst. 429. it was enacted, that in all cases where ecclesiastical persons recovered lands by default, a jury should try the right of the demandants to the land, and if the religious house was found to have a title, they should recover seisin, otherwise it should be forfeited to the immediate lord of the fee, in the manner directed by the statute de religiosis.

7. In consequence of this statute, feigned recoveries seem to have been disused for a considerable time; nor were they again brought into general practice until some centuries afterwards, when they were résumed as a mode of evading the strictness of the statute De donis conditionalibus.

$44.

8. Many attempts had been made by the people to Tit. 2. c. 2. procure a legislative repeal of this offensive and impolitic statute, which were constantly and successfully opposed by the great barons; but as the inconveniences arising from entails were so manifest, the ingenuity of the Judges was continually exerted in contriving different modes of evading them. At length a case arose in 12 Edw. IV. in which it was in effect determined, upon principles which will be explained in a subsequent chapter, that a common recovery, suffered by a tenant in tail, should operate as an

Willes R.

451.

Manner in which they are suffered.

effectual bar to his estate tail, and also to all the estates in remainder, and to the reversion depending thereon. From that time common recoveries have become extremely frequent, and have ever since been considered as common assurances, by means of which tenants in tail are enabled to bar their estates tail, and to convert them into estates in fee simple.

9. A common recovery being a judgment obtained in a real action, although it be fictitious, yet the same mode of proceeding must be pursued, and all those forms strictly adhered to, which are necessary to be observed in an adversary suit. For as Pigot observes, though common recoveries are, to some intents, deemed fictitious proceedings, yet it is necessary there should be actores fabulæ.

10. The first thing, therefore, necessary to be done in suffering a common recovery is, that the person who is to be the demandant, and to whom the lands are to be adjudged, should sue out a writ, or præcipe, against the tenant of the freehold; whence such te nant is usually called the tenant to the præcipe.

that

11. In obedience to this writ, the tenant appears in court, either in person or by his attorney; but instead of defending the title of the land himself, he calls on some other person, who upon the original purchase is supposed to have warranted the title, and prays that person may be called in to defend the title which he warranted, or otherwise to give the tenant lands of equal value to those which he shall lose by defect of his warranty. This is called the voucher, vocatio, or calling to warranty.

12. The person thus called to warrant, who is usually called the vouchee, appears in court, is impleaded, and enters into the warranty; by which

means he takes upon himself the defence of the land, The demandant then desires leave of the Court to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demandant returns into court, but the vouchee disappears, or makes default; in consequence of which it is presumed by the Court that he has no title to the lands demanded in the writ, and therefore cannot defend them; whereupon judgment is given for the demandant, now called the recoveror, to recover the lands in question against the tenant, and for the tenant to recover, against the vouchee, lands of equal value, in recompence for those so warranted by him, and now lost by his default.

13. This is called the recompence of recovery in value; but as it is customary to vouch the crier of the Court of Common Pleas, who is hence called the common vouchee, the tenant can only have a nominal, and not a real recompence for the land thus recovered against him by the demandant.

14. A writ of habere facias is then sued out, directed to the sheriff of the county in which the lands thus recovered are situated; and on the execution and return of this writ, the recovery is completed.

15. The recovery here described is with a single voucher; but a recovery may and is frequently suffered with double, treble, or farther voucher, as the exigency of the case may require; in which case there are several judgments against the several vouchers.

16. In a recovery with double voucher the tenant in tail conveys an estate to some indifferent person, against whom the writ is brought; this person being tenant to the præcipe, vouches the tenant in tail, who