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until the recovery is reversed; because a common recovery with voucher bars every kind of right which the vouchee or his heirs can have to the land; but a void recovery is no bar.

36. Thus, where R. Barton, being tenant in tail, levied an erroneous fine, and afterwards a writ of entry was brought against the cognizee, who appeared and vouched over R. Barton, and he vouched over the common vouchee. After the death of R. Barton, the issue in tail brought a writ of error to reverse the fine, to which the recovery was pleaded in bar. And it was resolved, that when tenant in tail levies an erroneous fine, he hath yet a right to the land, which, by his entry into the warranty, and recovering thereby an intended recompence in value, is barred. For although tenant in tail cannot by deed release errors to bar the issue in tail, yet as by fine or recovery he may bar the estate tail itself, so may he bar the writ of error; and when he enters into the warranty and vouches over, and hath recompence, he is in by his warranty of all estates, and the recompence in value is a sufficient bar to all estates and rights which he had in him.

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Is an Estop

pel on Record.

Pigot, 123.

ante, c. 2.

$56.

SECTION 1.

THE judgment in a common recovery being of equal force with that which is obtained in an adversary suit, operates as an estoppel on record against all those who are parties to it, and concludes 10 Mod. 45. them from averring any thing against it. But a common recovery, when suffered of an estate tail, will not operate as an estoppel against the issue in tail, the remainder-men, or reversioner.

Lets in prior

Incumbrances.

2

9

52 b.

10 b.

Pigot, 120. 1 Wils. R. 277.

2. A common recovery suffered by a tenant in tail lets in all his preceding incumbrances, and renders 1 Rep. 62 a. valid all the acts of ownership which he has exercised over the estate tail. So that if a tenant in tail makes a lease not warranted by the statute 32 Hen. VIII., or acknowledges a judgment or recognizance, and afterwards suffers a common recovery; it will operate as a confirmation of these charges, which were before defeasible by the issue. For the recoveror acquires an estate in fee simple, derived out of the estate tail; and therefore all those acts which bound the tenant

in tail, will also bind the recoveror, who cannot aver that the person against whom he recovered had but an estate tail. It is therefore extremely dangerous for a tenant in tail who has made leases, acknowledged judgments, or incumbered his estate tail in any other manner, to suffer a common recovery; because all those incumbrances will thereby become valid, and take place before any charge which is made on the lands, by or after the recovery.

119.

3. Although a recovery be suffered for a particular purpose, yet it will confirm all prior incumbrances. Thus, in the case of Goddard v. Complin, the follow- 1 Chan. Ca. ing question was put :-Tenant in tail mortgages for years, and afterwards, in consideration of marriage, suffers a recovery, for the purpose of settling a jointure on his wife. Whether this recovery should enure to make good the mortgage, it being only designed for establishing the marriage settlement? It was answered, that if there had been no recovery, there could have been no jointure, nor could the wife have avoided the mortgage, for she was in by the act of her husband, and no subsequent act of the husband could have avoided the mortgage. It was also said, that if a tenant in tail confesses a judgment, &c. and suffers a recovery to any collateral purpose, the recovery shall enure to make good all his precedent acts and incumbrances.

4. Where a tenant in tail makes any conveyance or settlement of his estate tail, which is not binding on his issue; if he afterwards suffers a common recovery, it will enure to make good the preceding conveyance or settlement.

5. Gerard Walker the father, by settlement on his Cheney v. marriage, conveyed an estate to the use of himself for Hall, Amb. Rep. 526, life, remainder to the first and other sons of the marriage in tail. In 1733 the son, on his marriage, con

Goodright v. Mead,

3 Burr. 1703.

body of the

veyed part of the estate by lease and release to the
use of himself for life, remainder to his intended wife
for life, remainder to the heirs of the
wife, remainder to his own right heirs. In 1746 the
father and son mortgaged the premises to Henry Peach
for 1,000 years to secure 300l. and suffered a common
recovery, and declared the uses to the mortgagee, and
then to the father for life, remainder to the son in fee.
Lord Northington was clearly of opinion that the re-
covery enured to the uses of the settlement of 1733.
6. A person, seised to him and the heirs male
of his body, remainder to his own right heirs, by
lease and release, previous to his marriage, con-
veyed his estate to trustees, to the use of himself
for life, remainder to the use of his intended wife for
life, remainder to his first and other sons in tail male.
The marriage took effect, and they had issue a son:
nineteen years afterwards the husband suffered a
common recovery, and declared it to be to the use of
A. B. and his heirs, in trust to sell the premises for
the payment of his debts. A. B. sold the lands for
the payment of the debss, according to the trust re-
posed in him; the tenant in tail died, and his son
claimed the lands. The Court were unanimously of
opinion, that the recovery enured to the uses of the
settlement, and therefore that the purchaser had no

title.

shall

7. The principle that a common recovery operate as a confirmation of any preceding incumbrances created by the person who suffers such recovery, is founded in natural justice, which forbids men to defeat their own contracts. But where a tenant in tail, with the reversion in fee in himself, creates incumbrances, and his son (on whom the estate Tit 35. c.12: tail and reversion in fee descends) suffers a recovery, it will not, like a fine, operate so as to let the rever

§ 9.

sion into possession, and thereby make it liable to the debts of his father; because the operation of a recovery is to destroy all remainders and reversions expectant on the estate tail, and the fee acquired by the recoveror proceeds out of the estate tail. It follows, that where a person is tenant in tail by descent, with the reversion in fee in him also by descent, he ought never to bar his estate by fine only, but ought also to suffer a common recovery, which will effectually prevent the estate thus acquired from becoming liable to the debts or contracts of his ancestor.

tion of a

Devise.

8. A common recovery operates as a revocation of Is a Revoa prior devise of the lands, whereof the recovery is suffered, upon the same principle that a fine has that effect.

Tit. 38. c. 6.

Forfeiture in

Pelham's

252 a.

9. A common recovery suffered by a tenant for life Creates a wherein he is vouched, without the concurrence of some Cases. the person in remainder, operates as a forfeiture of Case, the estate for life, in the same manner as if he had 1 Rep. 15. levied a fine. This doctrine was deduced from the common law; for if a demandant in a real action recovered against a tenant for life by default, or nient dedire, or by pleading covinously, to the dis- 1 Inst. 35 b. herison of the person in reversion, the tenant for life forfeited his estate, for he was intrusted with the freehold, and was to answer the præcipes of strangers, and to defend his own, as well as the reversioner's estate; so that when he gave way to the demandant's action, or vouched a stranger, he admitted the reversion to be in such demandant or stranger; and consequently denied the tenure of the reversioner, which was a forfeiture.

10. If a person is tenant for life, with an estate in remainder in tail in himself; he may in that case suffer a common recovery, without incurring a forfeiture.

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