infra, c. 9. § 1. ante, c. 5. $ 7. Married Women. are estopped to aver any thing against it; except infants, and that only where the recovery is reversed during their minority. 3. Where a married woman joins with her husTit. 35. c. 10. band in suffering a common recovery of her own estate, she will be bound by it as effectually, and for the same reason, as if she had joined with him in levying a fine. Incledon v. Northcote, 3 Atk. 430. 2 Inst. 347. 4. Thus it was held by Lord Hardwicke, that where a married woman, having the trust of a term in her, joined her husband in suffering a common recovery of the lands out of which the term was created, she was thereby barred of all her claim to it; for she came in by voucher, in privity of all her estate, legal and equitable. 5. By the statute Westm. 2, c. 4, réciting, that where a husband was impleaded and gave up the land demanded to his adversary by covin, after the death of the husband, the Justices should award the wife her dower; but that where the land was lost by default, there was a difference of opinion: it was therefore declared, that in both cases the widow should be heard, and if it was alleged against her that her husband lost the land by judgment, and it was found that it was by default, then that the tenant should show that he had right, and if he could show that the husband had no right, he should go quit, and the wife recover nothing; but if he could not show that, the wife should recover her dower. 6. It follows from this statute, that a common recovery, suffered by a husband alone, will not bar his wife of dower; and it was much doubted whether a woman was barred of dower by joining her husband in suffering a common recovery; nor was the point settled till the reign of Queen Elizabeth. be § 20. 7. Thus in the case of Eare y. Snow it was said ante, c. 7. that the wife was named in the præcipe only to 2 Rep. 74 a. barred of her dower; to which purpose women were named in common recoveries had against their husbands; and the usage in this case was to be regarded, for in such cases it had always been the intent of the parties, before that time, that the wife should be barred of her dower. 8. Pigot says he heard some learned men question this, because the woman has then no estate in esse: but the same might be said against a fine, and the common recovery estops her as party, and disaffirms her husband's title to the lands, of which she was dowable. 66.. Estates. Tit. 12. c. 2. 9. It has been stated that a trust or equitable Trust estate may be entailed as well as a legal one; and it has been long settled that a common recovery suffered by a cestui que trust in tail, who is in possession under the trustees, will effectually bar such estate tail, and all equitable remainders, and the equitable reversion depending thereon; although there be no legal tenant to the præcipe. noon, 78. 1P. Wms. 91. 10. Sir Francis North purchased certain lands in North v. ChamperEssex from R. Allington, who was cestui que trust in tail of them, with remainders over, and had suffered 2Cha.Ca. 63. a common recovery; but there was no legal tenant 1 Vern. 13. to the præcipe, the freehold being in the trustees, who were not parties. The question was, whether the remainders expectant on the estate tail were barred by this recovery. The decree was in these words: -"His Lordship, upon long debate of the matter, on hearing what was alleged by the counsel on either side touching the same, declared that he was fully satisfied that the said recovery did sufficiently bar all remainders depending upon the estate tail of R. Allington, who suffered the same; it being a 2 Cha. Ca. 64. Fearne's Opinions, 330. Burnaby v. 3 Ves. Jun. general rule, that any legal conveyance or assurance by a cestui que trust shall have the same effect and operation upon a trust, as it should have had upon the estate in law, in case the trustees had executed their trust; otherwise trustees, by refusing, or not being able to execute their trust, might hinder the tenant in tail of that liberty to dispose of his estate, and bar the remainders, which the law gives him as incident to his estate; which would be manifestly inconve nient, and tend to the introduction of perpetuities.” 11. In recoveries of this kind there must be an equitable tenant to the præcipe; that is, the trust estate must be conveyed to a third person, against whom the writ must be brought, in the same manner as in recoveries of legal estates. 12. If there be a cestui que trust for life, before the cestui que trust in tail; so that in case the legal estate had been conveyed according to the trusts, the tenant in tail could not bar the estate tail by a common recovery; there the cestui que trust in tail cannot bar his estate tail by a recovery. 13. It was formerly held that a feme covert to whom a trust estate was limited for life, for her separate use, could not make a good equitable tenant to the præcipe, without joining with her hus band in a fine. But in a modern case, where an estate was devised to trustees and their heirs, in trust to receive and pay over the rents and profits to a married woman for life, for her separate use; and after her decease, to convey the estate to her daughters, as tenants in common in tail; it was held by Lord Alvanley that the wife took an equitable estate for life; and that a conveyance from her and her husband, by lease and release, was sufficient to make a good equitable tenant to the præcipe. 14. Where an estate is conveyed or devised to Vide Tit. 12. trustees and their heirs, upon trust to pay debts c. 1. § 33. generally, or such debts as are specified, and after payment of such debts, or when such debts shall be paid, then in trust for A. B., or in trust to convey such parts of the estate as shall remain unsold to A. B.; in either of those cases A. B. has a trust estate in the surplus vested in him immediately upon the execution of the deed, or the death of the testator, and may suffer an equitable recovery of such estate. 15. This point was lately investigated with great learning and ability, in consequence of an objection that was made to the title of the Marquis of Bath to an estate, upon the following case: tanea Juri By a settlement previous to the marriage of Lord Vide CollecBath (then Lord Weymouth) certain estates were con- dica, vol. 1. veyed to the use of Lord Bath for life, remainder to P. 214. the intent that Lady Bath should receive a jointure, remainder for a term of years, to raise portions for younger children, remainder to the first and other sons of the marriage. The estate thus settled being subject to several incumbrances, other estates were limited to trustees in fee, upon trust to stand seised thereof as a collateral security to protect the settled estates; and in order to discharge the said incumbrances it was declared that the trustees should, by mortgage or sale of the estates conveyed to them, raise such sums of money as should be necessary to pay off the incumbrances; and it was agreed, that after all the incumbrances should be paid, and all the other trusts should be performed, the trustees should stand seised of so much. of the said estates as should remain unsold, and of the equity of redemption of so much as should have been mortgaged, The validity of this re upon trust to settle and convey the same to Lord |