Banks proceeded out of the estate tail, and took its effect to the use of the person so enabled in law to suffer the same, as the result of his power, in virtue of the estate tail, which was gained by settlement (i.e.) by purchase; and consequently the remainders and reversions which subsisted before the recovery were alike extinguished, and put to an end, by force and operation of such recovery: that if the estate tail, as to the issue only, is considered as barred by a recovery, and the old estate in fee or reversion, subject to the estate tail, is let in, and takes place, as contended for by the plaintiff, the consequence and inconvenience thereof would be, that in that case every estate in the kingdom, of which a recovery is suffered by a tenant in tail, seised also of the reversion in fee, would still remain liable as assets by descent to the specialty debts of the ancestor from whom it descended (for the estate tail, while it subsists, and the base fee, gained by force of a fine, suspends the remedy, so long as there is issue, and therefore preserves the debts); and this form of conveyance, invented and long used to strengthen the title of possessors who are tenants in tail, would be a means of destroying such intention, and would revive old demands, to the ruin of many families. After hearing counsel on the writ of error, the Judges (who attended according to order) were directed to deliver their opinions on the following question, viz. "Whether, upon the death of Jacob Banks, the estate in question did by law descend to his heir on the part of the mother or not?" And the Judges, having taken time to consider, the Lord Chief Justice of the Common Pleas delivered their reasons at large, and concluded with their opinion, "That the estate in question, upon the death of Jacob Banks, did not descend to his heirs on the part of the mother." Whereupon it was ordered and adjudged, that the judgment given in the Court of King's Bench should be affirmed. TITLE XXXVI. RECOVERY. Persons who are not Parties. Pigot, 67.1 Estates pre- that of which CHAP. X. What Persons, Estates, and Interests are not barred by a Recovery. 1. Persons who are not Parties. 3. Estates precedent to that of which a Recovery is suffered. 7. Estates in Dower or Jointures. 33. Estates held Jure Uxoris. 41. Estates Tail granted by the 55. Reversions vested in the Crown. SECTION 1. No persons are barred by a common recovery but those who are parties to it, and the issue in tail, the remainder-men, and reversioners, and persons claiming under conditional limitations expectant on, or to take effect after estates tail. 2. Thus if lands are given to a husband and wife, and the heirs of the body of the husband, remainder over, and the husband alone suffers a common recovery, in which he comes in upon the voucher, and vouches over; such recovery will bar the estate tail, and the remainder over; but will not bar the wife's estate, because she is not a party. 3. No estates or interests are barred by a common recovery, but those which are subsequent, in point of limitation, to the estate of which the recovery is suffered; for all interests precedent remain as they were before. 4. Thus, although a recovery be a good bar to a re- Pigot, 187. mainder for years, limited to commence after the determination of an estate tail; yet if such term be limited to arise before the estate tail, it will not be barred by a recovery suffered of the estate tail. Lake. 718. 5. A. being tenant for life, remainder to B. in tail, Pledgard v. B. made a lease for years, to commence after the Cro. Eliz. death of the tenant for life. The tenant for life Dyer, 51 b. afterwards suffered a common recovery, in which the in Mar. remainder-man in tail was vouched: and it was de- Poph. 5. termined that the term for years was not barred by the recovery, but that the lessee might falsify it. note. 6. If a person is tenant for life, with remainder to 1 Inst. 204 b. trustees to preserve contingent remainders, remainder to his first and other sons in tail male, remainder to his daughters as tenants in common in tail, remainder over; and having a daughter, he joins with her in suffering a common recovery; it will be good against the tenant for life, and his daughter, and the remainder-man; but the estates tail limited to the first and other sons, being prior to the estate of the daughter, and being supported by the limitation to the trustees, will not be affected by the recovery. Dower or 7. It was formerly a practice for women, having Estates in estates in dower, or jointures, to alienate them by Jointures. fine or recovery; and so give them away from their 1 Inst. 326 b. husband's family. To prevent this practice, a statute was passed, 11 Hen. VII. c. 20, by which it was enacted, “That any woman who had any estate in dower, or for term of her life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, &c. of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband or of his ancestors, and shall hereafter, being sole, or with any after-taken husband, discontinue, alien, release, or confirm with warranty, or by covin suffer any recovery of the same; that all such recoveries, discontinuances, &c. shall be utterly void and of no effect; and it shall be lawful for the person in remainder or reversion to enter immediately." 9. In the statute 32 Hen. VIII. c. 36. by which tenants in tail were enabled to bar their issue by fine, is the following clause: "Provided always, that this act, nor any thing herein contained, shall extend to bar or exclude the lawful entry, title, or interest of any heir or heirs, person or persons, in or to any manors, &c. by reason of any fine or fines levied by any woman after the death of her husband, contrary to the intent of the statute 11 Hen. VII., of any manors, &c. of the inheritance or purchase of the said husband, or of any of his ancestors, assigned to any such woman in dower, for term of life or in tail. 10. These statutes having been made to prevent an injury, have always been construed liberally ; and therefore every kind of estate created by the fine or recovery of a jointress, of lands held by her as a jointure, is void against the heir of the husband. 11. Thus where a tenant in tail, who was a jointress within the stat. 11 Hen. VII., accepted a fine sur cognizance de droit come ceo, &c. from a stranger, who granted and rendered the lands to the jointress for 100 years; it was adjudged that this was a forfeiture; for otherwise the intention of the statute might, by practices of this kind, be entirely defeated. 12. With respect to the estates which have been deemed to be comprehended within this act, the same liberality of construction has been adopted; |