273 b. 1 Roll. Ab. 845. Gilb. Ten. 108. method by which a woman under coverture can convey her freehold, but by fine, I should shake many of the common recoveries of the kingdom; for whatever may have been the practice of some overcautious conveyancers, yet I believe it hath often been held that the husband alone may, by deed only, and without any fine levied by the wife, convey a sufficient freehold to the grantee to make him tenant to the præcipe." 49. This latter opinion seems to be perfectly consistent with the principles of the common law; for 1 Inst. 351 a. Lord Coke says-" If a man taketh to wife a woman who is seised in fee, he gaineth by the intermarriage an estate of freehold in her right; which estate is sufficient to work a remitter."-It must be the same where a man marries a woman seised in tail; for a feme covert cannot have a seisin distinct from her husband. And on this ground it has been frequently determined, that the husband's conveyance is sufficient to transfer a good estate of freehold, during the joint lives of the husband and wife. Mr. Pigot was of the same opinion, having laid it down, that a husband seised jointly with his wife, whether by moieties or entireties, or seised only in right of his wife, might create an estate of freehold during the coverture, and thereby make a good tenant to the præcipe. And this point was expressly determined in the following case, stated by Serjeant Roll. Pa. 72. Roll. Ab. tit. Recov. A. pl. 4. 50. A husband seised in right of his wife for life, remainder in tail to B., remainder to C., bargained and sold the land to another, against whom a præcipe was brought, who vouched him in remainder; and so a common recovery was suffered. Adjudged, that the recovery barred the remainder, because the bargainee was a good tenant to the præcipe. 51. It has been a frequent practice, ever since the Feoffment. introduction of common recoveries, to make a feoffment, with livery of seisin, of the lands, to the person against whom the writ of entry was intended to be brought, it being a common opinion, that a feoffment was the most secure conveyance by which a tenant to the precipe could be made; because if the feoffor Vide Tit. 32. was in possession at the time when the livery of c. 4. § 33. seisin was made, the feoffment was supposed to pass a good estate of freehold, either by right or by wrong, that is, by disseisin; but this doctrine has in some respects been denied in the following case. 52. In an ejectment for lands in Gloucestershire, the jury found a special verdict, that Sir Robert Atkyns, senior, being tenant for life, with remainder to his first and other sons, reversion in fee to himself, with a power of appointing a jointure to any aftertaken wife, married Ann Dacres, and, pursuant to his power, limited the lands in question to the said Ann Dacres for her life as a jointure. Sir Robert Atkyns, senior, made his will duly attested, and devised his reversion in fee, expectant on the estate tail limited, to his first and other sons, to Mr. Atkyns, the lessor of the plaintiff. Sir Robert Atkyns, senior, died, leaving a son, Sir Robert Atkyns, junior, who entered on all the estate, except that part which was limited to Lady Atkyns for her jointure, on which she entered. Lady Atkyns being in possession of these lands, an ejectment was brought against her in the Common Pleas by John Philips, on the several demises of Sir Robert Atkyns, junior, and Joseph Walker, for the recovery of the premises in question, on the ground, that Sir Robert Atkyns, senior, had no power of appointing her a jointure; and the same was tried at the bar of the Court of Common Pleas, when a verdict was found for the plaintiff, on which judgment was entered, and a writ of habere facias possessionem was sued out and executed; and Sir Robert Atkyns, junior, entered into, and was in possession of the premises. Sir Robert Atkyns, junior, being thus in possession during the lifetime of Lady. Atkyns, made a feoffment of the premises, with livery of seisin, to James Earle, in order to make him tenant to the præcipe, for the purpose of suffering a common recovery, which it was thereby declared should enure to the use of Sir Robert Atkyns, junior, his heirs and assigns for ever. A common recovery was accordingly suffered, in which the writ of entry was brought against James Earle, the feoffee, who vouched Sir Robert Atkyns, junior, and his wife, and they vouched over the common vouchee. Sir Robert Atkyns, junior, continued in possession, from the time of the recovery until November 1711, when he died without issue. Lady Atkyns, the jointress, brought an ejectment against Robert Atkyns, the heir at law of Sir Robert Atkyns, junior, for the recovery of her jointure; the cause having been tried at the bar of the Court of Common Pleas, and it appearing evidently to the Court, that Sir Robert Atkyns, senior, had a power of appointing a jointure to Lady Atkyns, which he had duly executed, and that the former verdict was clearly wrong, a general verdict was given for the plaintiff, on which judgment was entered, and Lady Atkyns was restored to the possession of the premises, and continued seised of them until the time of her death. The principal question in this case was, whether the recovery was well suffered? which entirely depended upon, whether James Earle, the feoffee of Sir Robert Atkyns, was a good tenant to the præcipe. It was contended, on the part of the plaintiff, that the recovery was not well suffered; and, to show that James Earle took no estate by the feoffment, which could make him a sufficient tenant to the freehold, to answer the writ in a common recovery, it would be material to consider, first, whether Sir Robert Atkyns, junior, was tenant in tail in possession; and, secondly, supposing him to be only tenant in tail in remainder, whether his feoffment conveyed the freehold to James Earle by disseisin? As to the first of these questions, if Sir Robert Atkyns had been tenant in tail in possession, his bargain and sale, his lease and release, his fine, or his feoffment, would have conveyed a base fee; and operating by way of discontinuance, voidable either by the entry or action of the issue in tail, or remainder-man, would have made, by discontinuance, a sufficient tenant of the freehold; but Lady Atkyns, the jointress, was seised of the freehold for life, at the time of making the feoffment, and never joined in conveying an estate to the feoffee; the feoffment, therefore, being only the act of the tenant in tail in remainder, must, either pass an estate by disseisin, or was absolutely void. Then, whether the feoffment conveyed the freehold to John Earle, so as to make him a good tenant to the præcipe by disseisin, depended, first, on Sir R. A's entry; secondly, on his feoffment. By his entry, he gained no freehold; by his feoffment, he conveyed no estate; for, as to his entry, it was made under a mistaken judgment in ejectment, for Lady Atkyns, the jointress, recovered possession again in ejectment; by which second judgment his title was disaffirmed; and as the first judgment was plainly wrong, his entry must be considered as the mere act of tenant in tail in remainder. By the judgment in ejectment, he could recover nothing but the term; the point of that action is, that the plaintiff may gain possession under his term. The possession of the lessee being that of the lessor, the way in which it always operates to the lessor's benefit, is, that by obtaining judgment for the possession of his supposed tenant, he is enabled to enter; and, having entered, the possession unites with any present freehold in himself, whether it be a particular estate, or an estate in fee according to his right. But, in this case, Sir Robert Atkyns had no present estate of freehold in himself, he gained only a bare possession, and the freehold still remained, in judgment of law, in the jointress, who had the right to it: the entry of Sir Robert Atkyns under the judgment, must be a lawful entry; whether the sheriff executes the writ and gives possession, or whether the party is his own officer, and executes it for himself by taking possession, it has been held, that the entry is equally lawful in either method, if it pursues the judgment. But his possession being recovered without title, no holding over could gain the freehold; and his entry being lawful, no holding over, though wrongful, could create a disseisin, or change the cause of his possession; so that his conveyances were absolutely void, he having no estate on which a release would operate by way of enlargement, and there being no privity between him and the owner of the freehold. As to the feoffment of Sir Robert Atkyns, it might be considered in two lights. First, as a conveyance, operating either by right or by wrong. Secondly, as a conveyance, executed with a particular intent of making a tenant to the præcipe in a common recovery. 1st. As a conveyance, generally, it was not pretended that it could operate by right; it could only then be construed to convey a freehold by wrong. But it was a necessary |