Public utility adopted and gave a sanction to the doctrine, for the real political reason, to break entails; but the ostensible reason, from the fictitious recompence, hampered succeeding times how to distinguish cases which were within the false reasoning given, but not within the real policy of the invention, till at last the Legislature applauded common recoveries by a variety of statutes As the Legislature has for ages avowed the proposition, we may now say, that common recoveries are a mere form of conveyance, all necessary circumstances of form and ceremony are taken from its fictitious original. The policy of this species of alienation meant to take a middle way as to entails, between perpetuities and absolutę property; alienations were allowed, yet in such a shape as necessarily required deliberation and delay; and they were only allowed to be made by tenant in tail in possession, or by tenant in tail in remainder, with the consent of the owner of the first estate for life; the eldest son was restrained in the lifetime of his father or mother, or any other ancestor or relation seised for life under a family settlement. The act of 14 Geo. II. proceeds upon the parties to a recovery having power to suffer it: Sir Robert Atkyns the son had no right to suffer a common recovery, without the concurrence of the jointress; any con trivance therefore to do it, without her joining, is artifice and evasion. If tenant in tail in possession is disseised, though the præcipe be brought against the disseisor, yet if he is vouched, the recovery shall bar, because he had power to bar. In Jennings's case, 10 Co. 44, the recovery is supported, because the parties had power to bar; by parity of reason, this recovery ought not to be supported, because the parties had no power; if it was, the law must be overturned. Every remainder-man in tail might easily get a naked possession, and make a secret =feoffment. The plan of marriage and other family settlements, is to limit a remainder to the first and every other son in tail; the negative which the father now has upon the eldest son's suffering a common - recovery, is the very means and consideration of getting the estate re-settled upon the marriage of the eldest son. By this method, the moment he attains to the age of 21 years, he may set his father at defiance, suffer a common recovery, and bar all the rest of the family. This consequence alone, in a case unprecedented, is a sufficient objection. If, before the introduction of common recoveries as a conveyance, this question had been agitated in an adversary real action, upon a plea that Earle was not tenant to the freehold, it would have been adjudged, from the law, and artificial learning of tenures, that he could not be so considered. If the question had been, whether tenant in tail in remainder should, by such an injurious entry and feoffment, acquire a benefit to himself, to the prejudice of his reversioner, it would have been adjudged, from eternal principles of justice, that an act founded in wrong should not, by virtue of the crime itself, become legal for the author's advantage. As it is now agitated, when common recoveries are established as a species of alienation, the only question is, whether the rule of law, which requires the concurrence of the owner of the first estate for life, shall be overturned? It is better to subvert the rule directly, than suffer it to be done by a secret injurious entry and feoffment, which cannot be prevented, and which the owner may never hear of. There is no injury or wrong for which the law does not provide a remedy. But if this stratagem should prevail, redress must follow too late, unless the entry of the tenant for life shall avoid the recovery; if it would, there is an end of the present question, for the jointress entered, and was entitled to the profits from Sir Robert Atkyns as a trespasser ab initio. In every light, and upon every ground of law, this recovery is bad. Notwithstanding these arguments, judgment was unanimously given for the defendant, on the ground Vide Tit.31. that the plaintiff was barred by the statute of limitations, the ejectment not having been brought within c. 2. § 34. twenty years after the lessor's title accrued. A writ of error was brought in the House of Lords, where it was also determined that the plaintiff was barred by the statute of limitations. John Atkyns, the plaintiff in this cause, having died without issue, the person who was next in remainder under the will of Sir Robert Atkyns, brought an ejectment for the recovery of the same premises and the validity of this recovery having been again discussed in the Court of King's Bench in Mich. 18 Geo. III. Mr. Justice Aston delivered the opinion of himself, Mr. Justice Willes, and Mr. Justice Ashurst, (Lord Mansfield being absent) that the recovery was void, because James Earle was not a good tenant to the præcipe, and judgment was thereCowper's R. fore given for the plaintiff. The arguments which 689. Grant. were made on that occasion are very accurately reported by Mr. Cowper; but as they are the very same which had been used on the former hearing, it is unnecessary to state them. 53. It has been stated, that where lands are let for Tit. 32. c. 4. years, the lessor may transfer the immediate estate of freehold in possession by grant; and though a tenant $45. to the præcipe is never made by grant, yet it may sometimes happen, that the conveyance of an estate can only operate by way of grant, in which case it will be construed in that manner. Sale enrolled. 54. A good tenant to the præcipe may be made by Bargain and bargain and sale enrolled, and the bargainee may ap- Tit. 32. c. 9. pear and vouch before entry, or before the bargain For Comyns, and sale is enrolled, provided it be enrolled within Robinson v. six months, as prescribed by the statute. although the freehold does not pass from the bargainor until the enrolment, yet as soon as that is done, the freehold is considered as having passed from the bargainor at the time when the bargain and sale was executed, by relation. And as common recoveries are much favoured by the courts of law, a Lloyd v. Say bargain and sale to make a tenant to the præcipe will and Sele, not be deemed void on account of any trifling mis- § 26. take or inaccuracy. Tit. 32. c. 19. 55. A tenant to the præcipe may also be made by Lease and lease and release; and the reservation of a pepper- Release. corn in the bargain and sale for a year is a sufficient Barker v. consideration to raise a use in the bargainee, so as Tit 32. c. 11. Keate, to make the release valid, for the purpose of support- § 15. ing a common recovery. Deeds to 56. By the statute 14 Geo. II. c. 20. § 5. reciting A Recovery that it had frequently happened, that the deeds for good after 20 Years, making the tenants to the writs of entry, or other though the writs for common recoveries, had been lost, it is en- make a Teacted, that every common recovery then suffered, or nant to the thereafter to be suffered, should, after the expiration lost. Præcipe are of 20 years from the time of the suffering thereof, be deemed good and valid to all intents and purposes, if it appear upon the face of such recovery that there was a tenant to the writ, and if the persons joining in such recovery had a sufficient estate A Recovery sometimes a Tenant to the Præcipe. 10 Mod. 45. Godb. 147. and power to suffer the same, notwithstanding the deed or deeds, for making the tenant to such writ, should be lost or not appear. 57. Although in general a common recovery is good without not valid without a tenant to the præcipe, yet in some cases a common recovery may operate by estoppel, though there be no tenant to the præcipe; but this is only where the person who suffers the common recovery is tenant in fee simple; for the issue of a tenant in tail cannot be bound by estoppel, as they do not claim from their immediate ancestor, but from the first purchaser, per formam doni. |