executory trust, it was not barred by the recovery suffered by Lord Bath, because, at the time of suffering the recovery, the event on which the limitation was to take effect, namely, the discharge of the debts, had not happened. On the other side it was clearly laid down and proved, by Sir John Scott, Mr. Maddocks, and Mr. Fearne, that the limitation to Lord Bath in the settlement, gave him an immediate vested interest in the surplus of the estate after payment of the debts; that in the case of Bagshaw and Spencer, both the Master of the Rolls and Lord Hardwicke agreed that the devise to Benjamin Bagshaw was an interest actually vested in him. As to the idea of its being an executory devise of the legal estate, Lord Hardwicke said, if the will was to be construed in that manner, the devise would be too remote, being after payment of debts; but even admitting it to be a good executory devise of the legal estate to Benjamin Bagshaw, yet it did not vest in him, nor could his devisee claim it, because the recovery was suffered before the debts were paid, and consequently whilst the fee was in the trustees, so that he could not make a good tenant to the præcipe. The meaning of the expression of Lord Hardwicke, so much relied on, was therefore no more than this— that a person to whom an executory devise of a legal estate is made, cannot suffer a recovery until the event, on which the executory devise is directed to take effect, has happened. It was admitted that there was a strict analogy between executory devises and springing executory trusts, from which it was concluded, that if a devise of an estate after payment of debts was not good as an executory devise, a limitation of the same kind in a deed would be void as a future executory trust ; VOL. V. I i Pigot v. 3 Ves. Jun. Robinson v. Forrest. 167. I Atk. 473. consequently the trust created in Lord Bath's settlement, to settle the estates after payment of the debts, would have been void as an executory use or trust, and the estate must have resulted to Lord Bath and his heirs, who was the original owner of the inheritance; from whence it followed, that any convey. ance by Lord Bath would make a good equitable title, subject to the trust for payment of the debts. It was lastly said, that the payment of debts was not a condition precedent, which must be performed before a subsequent limitation or devise could take effect, but such subsequent limitation or devise was an interest commencing at the same time, and concurrent with the limitation or devise for payment of debts; and the words after payment of debts, or when the debts shall be paid, only denoted the order or course in which the several interests should take place in point of actual possession and perception of the profits, without preventing the subsequent estates, whether legal or equitable, from becoming vested in interest, at the same time with those which were prior to them in point of limitation. 16. It was determined in a modern case, that a trust estate passed by the deed, to make a tenant to the præcipe; the words being sufficiently extensive for that purpose; although the tenant in tail did not apprehend, at the time, that the estate belonged to him; and that, as no adverse possession was shown, the rightful owner must be presumed to have been in possession. 17. Recoveries of this kind only operate on the Cumming, trust estate whereof they are suffered, and the equitable remainders expectant thereon, but do not affect any legal estate; so that a legal remainder cannot be barred by an equitable recovery. cited Cases in 545.699. 18. Thus, where John Thornton, being seised of the Salvin v. premises for life, with remainder to his first son Thornton, Thomas in tail male, remainder to his second son 1 Brown's James in tail male, forfeited in the rebellion in 1745. Chan. 73. The estate for life being put up for sale by the com- Amb. Rep. missioners, was bought by Thomas (the tenant in tail), but in the name of a trustee. Thomas, thus having the equitable estate for the life of his father, and the legal estate tail, suffered a recovery, and soon after died, leaving issue a daughter, wife to the plaintiff. James, the second son, took possession, suffered a recovery (after the death of his father and the trustee, in whom his estate vested), and died, leaving two daughters, the defendants, who were in possession. The bill was filed by Salvin, in right of his wife, for an account of profits, and to have the estate delivered up. Upon the hearing at the Rolls, his Honour ordered the bill to be retained for a year, with liberty to try the validity of the recovery at law. But it was the opinion of the Court, that Thomas's estate for life being an equitable estate, did not enable him to suffer either a perfect legal, or a perfect equitable recovery, and therefore the recovery suffered operated nothing. 19. It was held in a modern case, that where an Brydges v. estate was devised to a person in fee simple, upon 3 Ves. Jun. Brydges, trust for several persons successively in tail, remainder 120. in tail to the devisee in trust, such remainder might be barred by an equitable recovery: for to create a Wykham v. merger of the equitable in the legal estate, by their Wykham, union, both estates must be co-extensive and commensurate; and therefore that an equitable recovery would bar an equitable remainder in tail, in the person who had the whole legal fee. 18 Ves. 395. 3 P. Wms. 171. Powers Appendant and in Gross. King v. 2 Lev. 58. Saville v. 1 P. Wms. 20. In the above case Lord Alvanley said, that though a legal remainder could not be affected by an equitable recovery, yet the converse of that proposition was not true; for a legal estate in the tenant to the præcipe was no objection. The very point was determined in the case of Marwood v. Turner. 21. Where a person has a power appendant or in gross, if he suffers a common recovery of the lands to which the power relates, it will bar and destroy it; because the lands are supposed to be recovered by a right which is paramount to that of the person who created the power, and which therefore over-reaches such power. 22. Lands were devised to Bernard Melling for life, and after his death to the issue of his body by a second wife, he being then married to his first wife; and for default of such issue, to another person, provided that B. Melling might settle a jointure on his second wife. B. Melling entered on the death of the devisor, and, during the life of his first wife, suffered a common recovery, to the use of himself and his heirs. It was agreed in the Exchequer Chamber, 1. That B. Melling took an estate tail by the devise. 2o. That the power to make a jointure was destroyed by the recovery. And it was laid down by Lord Hale, that admitting B. Melling had but an estate for life, the power was destroyed. of 23. A settlement was made of lands to the use A. for ninety-nine years, if he should so long live; remainder to trustees during the life of A. to preserve contingent remainders, remainder over, with a power to A. to charge the lands with divers sums of money. A., the trustees, and the remainder-man in tail, joined in suffering a common recovery, and declaring new uses thereof, viz. to the use of A. for life, with remainder over. It was determined, that the joining of A. in making the new settlement, without reserving a power to charge the premises with the said money, had destroyed that power which A. had of charging; for the contrary construction would enable him to defeat his own grant. Powers 24. Powers collateral to the land are not barred by But not a common recovery, for the same reason that they are not barred by a fine. 25. A common recovery suffered by a tenant in tail, bars all collateral conditions and conditional limitations created to take place on the determination of such estate tail. collateral. Tit. 35. c. 10. § 58. Conditions and conditional Limitations. Fearne's Ex.. Dev. 75. 4th ed. Benson v. 26. R. Mosely covenanted to levy a fine of certain lands to the use of himself and the heirs male of his body, remainder in tail to several others: provided 1 Mod. 108. that if there should be a failure of issue male of his 2 Lev. 28. body, and Dame Elizabeth were dead, and Ann Mosely was married, or of the age of twenty-one years, then she should have 200l. per annum for ten years. R. Mosely died, leaving issue Sir Ed. Mosely, who made a lease for 1,000 years, and then suffered a recovery of the estate tail, and died without issue male. The contingencies all happened; and the question was, whether the rent-charge of 2001. was barred by the recovery? Lord Hale said, if tenant in tail grants a rentcharge, and suffers a common recovery, the rentcharge will not be avoided: so that if tenant in tail be, rendering a rent, a recovery will not bar that, though it doth a reversion. But the reason of this case is, because the estate of him that suffers the recovery is charged with the rent. Therefore, if there |