Hen. VIII., the estate tail must be of the gift or provision of the King, by way of reward. As for the services, which are the consideration of such gift, these must, at a distance of time, be presumed, and need not be proved. To take it out of the statute, you must show that it is not of the gift or provision of the King. And, in the present case, it is plainly not so, upon the face of it. The petition is founded upon no other consideration, than that Elizabeth Milton was cousin and heir of Dexter, who enfeoffed the Earl of Derby. No merits are mentioned, notwithstanding the statute 4 Hen. IV. c. 4. was then recent. The King himself states, that he was bound to make the grant by law, good faith, and conscience. What the circumstances of the fact were, cannot now be discovered; whether a defeazance, a condition, or an use, or any thing else. Nor is it material to know. It is enough, that the King has recited generally, that he was bound to do it. It cannot, therefore, be a gift. As to the objection, that the King granted only a particular estate, and kept back the fee, that might be all he was bound to do. Nor can we reason very conclusively from the conduct of such a Prince as Henry IV. He might possibly do only half justice. Such things have happened in later times. Lord Anglesey, after the Restoration, was obliged to restore the estates he had got during the rebellion in Ireland; yet many of the of the poor poor owners were glad to compound, and take leases for ninetynine years, instead of the fee. Upon the whole, as the estate was not of the King's gift, I think it not within the protection of the statute, and therefore the recovery is good." Mr. Justice Yates was of the same opinion; and said, the Court would not stretch to enlarge the interpretation of a statute, which prohibits the natural right of alienation by tenant in tail. 50. No alteration however in the limitations of an estate tail, whereof the reversion continues in the Crown, will enable the tenant in tail to bar his issue, or the reversion. 51. Thus, in the case of the Earl of Derby, one of Murrey v. the questions was, whether an estate tail, granted by Price, Eyton and 260. Richard III. to the Derby family as a reward for ser- T. Raym. vices, which by a private act of 4 Jac. I. was limited Pollexf. 491. to the heirs male of the family in a different manner 2 Show. 104. T.Jones,237. from that in which it had been limited by the letters patent, the reversion still continuing in the Crown, was within the protection of these statutes? And 1 Wils. Rep. the majority of the Judges in the Exchequer Chamber were of opinion, that notwithstanding the alterations made by the private act of parliament, as they were all within the compass of the old entail, and as the reversion still continued in the Crown, the estate was within the protection of the 34 & 35 Hen. VIII. 52. It was formerly usual for persons who were seised of estates tail of this kind to procure the concurrence of the Crown to alienate them, which was commonly effected in this manner. The Crown conveyed the reversion to a subject, either in trust for itself, or for the tenant in tail, by which means a fine or recovery was a good bar of the estate tail, according to the second rule laid down by Lord Coke. 275. Case, 288.358. 53. Thus, it was held by all the Judges, that if the Chesterfield's King made a gift in tail, reserving the reversion to Hard. 409. himself, and afterwards permitted the tenant in tail T. Raym. to suffer a common recovery, by granting the rever- T. Jones, sion to a stranger, in trust to reconvey it after the 251. recovery was had, a common recovery suffered under Tit. 34. § 10. & 24. Reversions Crown. Pigot, 85. 1 Wils. R. 275. these circumstances would bar both the estate tail and the reversion; because the reversion was once severed from the Crown, by which means the privity of estate was destroyed: for the intention of the statute was only to restrain common recoveries, where the reversion always continued in the Crown, without any alteration. 54. Since the statute 1 Ann. st. 1. c. 7. the above mode of evading this act is effectually prevented, the Crown being restrained by that statute from alienating its ancient possessions in fee simple; and therefore an act of parliament is the only mode by which such an entail can now be barred. 55. Before the statute De donis, when the King vested in the created a conditional fee, there remained nothing in the Crown but a bare possibility; and if the donee had issue, and afterwards aliened, the King's possibility was barred, as well as that of the subject. After the statute De donis had turned that possibility into a reversion, and after common recoveries were allowed to be common assurances, and to bar remainders and reversions, it became a question how far a recovery could bar a remainder or reversion Plowd. 553. vested in the King: and it was held by the Judges, 1 Inst. 335 a. that though a recovery suffered by a tenant in tail barred the estate tail, yet that it would not affect any interest which the King had in the remainder or reversion, as they did not venture to assert that the Crown could be deprived of any part of its property, under pretence of a recompence in value, which was merely imaginary. Recov. 85. 56. Pigot says it is vexata questio how far, at common law, a remainder vested in the King was divested by recovery and discontinuance; but he afterwards admits that neither a fine nor common recovery can divest any estaté in remainder or reversion out of the King. He then says, that if a recovery be on good title against tenant in tail, and the King has the remainder by a defeasible title, there it shall divest the remainder out of the King, and restore and remit the right owners. This 50. 57. This opinion appears to be founded on the determinations in Wiseman's case, and Cholmeley's 2 Rep. 15 & case, where the Court held that the limitation of the reversion to the Crown was void, and therefore that such reversion was barred by the recovery; but admitted that if the reversion had been well vested in the Crown, it could not have been barred. doctrine has been however denied by some modern lawyers of great eminence. The late Mr. Macnamara, in a very able opinion on a question of this kind, contended that the stat. 34 & 35 Hen. VIII. was merely declaratory of the common law; and that where an estate tail was not protected from the effects of a common recovery, a remainder or reversion in the Crown, expectant on it, was not protected. That the contrary opinion would be introductive of something like a perpetuity; for by a limitation of the ultimate reversion to the Crown, the tenants in tail could only acquire a base fee in the estate. And the late Mr. Serjeant Hill was of the same opinion. Vide Stat. 30 Geo. III. c.51. Personal 58. The usual mode of acquiring a good title to an estate tail, whereof the reversion is in the Crown, is, by obtaining an act of parliament, enacting that Local and the reversion shall be divested out of the Crown, Acts, and vested either in the tenant in tail, or in some other private person; by which means it becomes barrable by a common recovery. 59. By the statute 21 Hen. VIII. c. 15. § 4. it is enacted, that no manner of statute staple, statute VOL. V. M m 51 G. III. c. 68. Estates held by Elegit, &c. Executory merchant, nor execution by elegit shall be avoided, or in any ways made frustrate by means of any feigned recovery. 60. A common recovery does not bar an executory Tit.38. c. 17. devise; of which the reason will be given in a subse Id. quent title. But if the person entitled to the executory devise is party to a recovery suffered by the person to whom the fee is first devised, and comes in by way of vouchee, it is said that he would be barred. |