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Certain Anes taken to be levied
3 & 4 Will. 4, registering the certificates of acknowledgment of married women subject to c. 74, s. 13. the order of that court (s. 2). The business of the abolished offices is trans
ferred to the same officer (s. 3). Searches may be made and copies taken of the records and documents, which copies and extracts, signed by the same officer shall be as available in evidence and as effectual as the same would have been if signed by the officers of such abolished offices.
The 5 Vict. sess. 2, c. 32, passed on 18th June, 1842:-“Whereas the records of fines levied and recoveries suffered in the lately abolished courts of great sessions in the principality of Wales, and the lately abolished court of session in the county palatine of Chester, were in many cases so irregularly and carelessly engrossed and kept, that divers purchasers, and others whose titles were intended to be secured by and under the said fines and recoveries, are in danger to have the same impeached, notwithstanding that the said fines and recoveries had duly passed all the offices, and that the
lands intended to be thereby assured are sufficiently described in the proAll fines levied in ceedings upon such fines and recoveries : be it enacted, that all fines levied the late courts of in the lately abolished courts of great sessions in the principality of Wales, great sessions in Wales and the or in the lately abolished court of session of the county palatine of Chester, court of session in of which the writ of covenant was duly returned and compounded, and of Cheshire shall which the acknowledgment was before the judge or by commissioners duly be held to be good taken and allowed, and of which the said writs and concords, with other standing any neg- proceedings, were lodged in the office of the prothonotary of the county in lect in keeping which the lands named in such writs are situated, shall be holden good and the record.
firm in law, notwithstanding the misprision or neglect of any prothonotary, deputy prothonotary, secondary, or other officer of any of the said courts, or their clerks, or any other public officer whatsoever, to file the same, or to engross the chirograph or foot of such fine, to endorse or record the proclamations thereof, or to enrol or docket the said fine, or do any other thing which by his office he ought to have done after the acknowledgment of the said fine."
Sect. 2. “ That where it shall be needful to prove that any fine which with proclama
appears to have been duly acknowledged was levied with proclamations in tions,
any of the said courts, it shall be taken to have been so levied, and shall have all the force of a fine levied with proclamations, although no chirograph or foot of such fine be found endorsed with proclamations, nor any entry of them or any of them appear on record, if such fine were duly enrolled or entered on the plea roll of the session in which it was levied, or docketed in the docket roll or docket book of such session, so as to set forth the names of the parties, and the places in which the lands are situated of which such fine was levied; or if within three years from the passing of this act, or such further time as the Court of Common Pleas shall in any case allow, such fine shall have been docketed, in such form as aforesaid, in docket rolls or docket books of parchment or vellum, by the several late prothonotaries of the said abolished courts, or in case of the death or inability of any such prothonotary, by some person or persons appointed for that purpose by the Master of the Rolls; or if within the said period of three years, or such further time as the Court of Common Pleas shall in any case allow, the writ of covenant, and the concord and all other proceedings of such fine, shall have been enrolled, with the allowance of the said court, in a book or books, roll or rolls of parchment or vellum, as hereinafter provided: provided always, that any such fine may be reversed by writ of error issued within twenty years from the levying thereof.” To prove the levying of a fine with proclamations in a court of great session in Wales, the chirograph was produced, having one proclamation indorsed, and the plea roll of the same session, at which the chirograph stated the fine to have been levied, containing the entry of a licentia concordandi between the same parties, and respecting the said premises, as those mentioned in the chirograph. It was held sufficient, by virtue of the stat. 5 Vict. c. 32, s. 2. (Doe
d. Cadwalader v. Price, 16 Mees. & W. 603.) Certain recoveries Sect. 3. “That all recoveries suffered in any of the said abolished courts declared good in whereof the writ of entry was duly returned, and the appearance of the
tenant and vouchee or vouchees duly recorded by the court, or the warrant or warrants of attorney duly executed and allowed, and of which the said
writ and other proceedings (if any) was or were lodged in the office of the 3 & 4 Will. 4, prothonotary of the county in which the lands named in the said writ are
c. 74, s. 13. situated, shall be holden good and firm in law, notwithstanding the nonenrolment or non-exemplification of such recovery, or any other misprision or neglect of any prothonotary or other officer as aforesaid to do any thing which by his office he ought to have done, after the recording of the appearance of the tenant and vouchee or vouchees, or the execution and allowance of the warrant or warrants of attorney: provided, nevertheless, that where no enrolment on the plea roll of the session in which such recovery was suffered or any exemplification of a pretended enrolment thereof, sealed with the judicial seal of the court, or any entry on the remembrance roll sufficient to prove the arraignment of the writ of entry, can be found or produced, no such recovery shall be holden good by virtue of this act, unless within three years after the passing of this act, or such further time as the Court of Common Pleas shall in any case allow, the writ of entry or other proceedings extant of record touching the said recovery shall be enrolled as hereinafter provided, or snch recovery shall have been docketed in full and ample manner as aforesaid : provided also, that any such recovery may be reversed by writ of error issued within twenty years from the suffering thereof."
Sect. 4. “That, subject to such orders as the Court of Common Pleas Fines and recofrom time to time shall make, any person may at any time henceforward veries may be encause the writ, concord, chirograph, proclamation, appearance, warrant of rolled in the office attorney, and all or any other proceedings in any fine or recovery levied or Court of Common suffered in any of the said abolished courts, and now extant among the Pleas. public records thereof, to be enrolled in the office of the registrar of certificates and affidavits of acknowledgments of deeds by married women in the Court of Common Pleas, which office, for the purposes of an act passed in the twenty-seventh year of Queen Elizabeth, intituled 'An Act for Re- 27 Eliz. c. 9. formation of Errors in Fines and Recoveries in the Twelve Shires of Wales and Counties Palatine, and for Exemplification of Fines and Recoveries generally,' and under such of the provisions of the said act as are now capable of taking effect, shall be deemed to be the enrolment office therein named: provided always, that no such enrolment of any writ of covenant or writ of entry shall be made as aforesaid where such writ shall not have been duly filed upon the proper file of the session in which the same was returnable, unless the compounding of such writ shall be proved to the satisfaction of the said registrar by an entry thereof duly made in the book of the compounder of king's silver for the county in which the lands named in such writ are situated; and in every such case such entry or certificate of composition made shall be enrolled together with such writ.”
Sect. 5. “ And be it declared and enacted, that the Court of Common Saving the Pleas shall have the same power of amending any fine or recovery, and the amending power record or enrolment thereof, whether as now extant, or as such fine or re- of Court of Comcovery, or any proceedings thereof, shall hereafter be enrolled, in manner aforesaid, as if the same had been originally levied, suffered or had in the Court of Common Pleas."
VI. Estates TAIL NOT BARRABLE BY WARRANTY. 14. All warranties of lands which after the thirty-first day of Estates tail, and December, one thousand eight hundred and thirty-three, shall thereon, no longer be made or entered into by any tenant in tail thereof, shall be barrable by war
ranty. absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail (o). ·
(0) See 3 & 4 Will. 4, c. 27, s. 39, ante, p. 228.
Power after the
3 & 4 Will. 4,
VII. DISPOSITION OF LANDS ENTAILED. c. 74, s. 15.
General enabling Clause. 15. After the thirty-first day of December, one thousand 1833, to dispose of eight hundred and thirty-three, every actual tenant in tail, lands entailed in whether in possession, remainder, contingency, or otherwise, fee simple, or for a less estate, shall have full power to dispose of for an estate in fee simple saving the rights absolute, or for any less estate, the lands entailed, as against all of certain persons.
persons claiming the lands entailed by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act would have been vested in or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons,* including the King's most excellent Majesty, his heirs and successors,-whose estates are to take effect after the determination or in defeasance of any such estate tail : saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such dis
position is by this act authorized to be made (p). Corresponding * The remainder of the corresponding clause in the Irish act, 4 & 5 Will. 4, clause of Irish c. 92, s. 12, runs thus: “whose estates are to take effect after the deterAct.
mination or in defeazance of any such estate tail, including the King's most excellent Majesty, his heirs and successors, as regards the title to his Majesty to any reversion or remainder created or reserved by any settlementor will, and which reversion or remainder shall have come or shall hereafter come to the crown in consequence of the attainder of any person to whom the forfeited reversion or remainder was previously to such forfeiture limited by any settlement or will, but not in any other case, or where the title to the crown shall have accrued by any other means; saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons except
those against whom such disposition is by this act authorized to be made." Actual tenant in (p) Actual tenant in tail means exclusively the tenant of an estate tail tail.
which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to
a right. (Ante, s. 1.) Equitable tenants As to equitable tenants in tail, and the form of assurance made necessary
in that case by this act, see 1 Hayes, Conv. 155, 5th ed. As to fines and re
coveries of equitable estates, see note to sect. 1!, ante, p. 314. Tenant in tall in The owner of a contingent estate tail was deemed incompetent to suffer contingency. a common recovery with effect (1 Prest. Conv. 142): but tenants in tail in
contingency are expressly within the words of this section. (See Sugd. R. P. Stat. 192; 1 Hayes, Conv. 194, 5th ed.) As to the alienation of contin
gent interests, see note to sect. 20, post. Disentailing deed A disentailing deed, executed by a tenant for life, has not the same effect
as a fine or recovery formerly had in divesting subsequent contingent estates, tenant for life.
and so creating a tortious fee. Such a deed would have had no such operation at common law, and its effect under the statute depends entirely upon its having been executed by a tenant in tail. (Slater v. Dangerfield, 15 Mees. & W. 263.)
By a disentailing deed under this act, after reciting that A. was tenant for life, with remainder to B. in tail of the two estates therein comprised, and that A. being called upon to pay a debt of 1,2001. had applied to C., who had agreed to advance that sum in consideration of B. joining in the deed, which he had also agreed to do ; in order to defeat all estates tail of B., and to convey the inheritance in fee therein, A. and B. jointly conveyed the two estates and all the interest of A. and B. therein to C., for 500 years, to
secure the repayment of 1,2001. and interest, with remainder to A. for life, 3 & 4 Will. 4, remainder to B, in fee. In fact, A. was tenant in tail, not tenant for life of c. 74, s. 15. one of the two estates: it was held, that the conveyance being for valuable consideration as to both B. and C., the tenant in tail under A.'s entail could not be heard to say, that such entail was not barred by the deed, the intention to convey the whole fee simple in the property so entailed being sufficiently expressed, and the operative words of the disentailing deed being large enough to bar such entail. (Evans v. Joncs, Kay, 29.)
A tenant for life in possession with a remote remainder in tail could by a recovery with double voucher bar such entail, but without prejudice to the intermediate interests between his estate for life and remainder in tail. (Smith v. Clifford, 1 Term Rep. 738; Meredith v. Leslie, 6 Br. P. C. 388; see Doe d. Lumley v. Earl of Scarborough, 3 Add. & Ell. 43.)
The recovery of a tenant in tail extended to the barring of executory Effect of disposidevises and springing uses. (1 Hayes, Conv. 135, 5th ed.) And it seems tion under statute that a disposition under this act will have a similar operation. “All estates
limitations. which, properly speaking, do take effect in defeasance of the estate tail, will be barred by a statute deed: therefore an executory or shifting limitation over after an estate tail, to take effect in defeasance of, and not to await the regular determination of the estate tail, will be barred." (Sugd. R. P. Stat. 193.) In some cases, however, estates which take effect in defeasance of the estate tail may be in strictness estates prior to the estate tail, which a disposition under the statute will not bar. As to the destruction of powers by a disposition under the statute, sce Sugden, Powers, 91, 8th ed., and Hill v. Pritchard, Kay, 394.
A disentailipg deed executed by a tenant in tail does not destroy the interest he possesses in the estate, but enables him by the exercise of the power which that interest gives him to render it perpetual. (Lilford v. Att.-Gen., L. R., 2 H. L. 63.)
A rent being an incorporeal hereditament, and susceptible of the same Tenant in tall limitations as other hereditaments, may be granted or devised for life or in of rent. tail with remainders or limitations over. But there is a difference between an entail of lands and an entail of rent; that the tenant in tail of lands, with the immediate reversion in fee in the donor, might, by a common recovery, bar the entail and reversion; whereas the grantee in tail of a rent de noro, without a subsequent limitation of it in fee, acquired by a common recovery only a base fee, determinable upon his decease and failure of the issue in tail; but if there was a limitation of it in fee after the limitation in tail, the recovery of the tenant in tail gave him the fee simple. (Smyth v. Farnaby, Carter, 52; Sid. 285; 2 Keb. 29, 55, 84; Weeks v. Peach, Lutw. 1218, 1224; S. C., Salk. 577; Chaplin v. Chaplin, 3 P. Wms. 229; Butl. Co. Litt. 298 a, n. 2; 1 Prest. on Conv. 3.) It will deserve consideration, whether a tenant in tail by an assurance under this act of a rent de novo, without any limitation in fee on its original creation, will acquire more than a base fee, as he would have done by a recovery; the act makes no distinction between a tenant in tail of land and of rents. (See ante, p. 297.)
An alien might suffer a common recovery (4 Leon. 404; Shep. Touch. Aliens. 404), and may execute a disentailing deed. (1 Jarm. Wills. 37.)
Ex provisione Viri, &c. Restraining Clause. 16. Provided always, and be it further enacted, that where Power of disposiunder any settlement made before the passing of this act, any exercised by woman shall be tenant in tail of lands within the provisions of women tenants an act passed in the eleventh year of the reign of his Majesty sione viri, under King Henry the Seventh, intituled “Certain Alienations made 11 Hen 7, c. 20, by the Wife of the Lands of her deceased Husband shall be assent. void,”: the power of disposition hereinbefore contained as to such lands shall not be exercised by her except with such assent as, if this act had not been passed, would, under the
The stat. 11 Hen. 7, c. 20, and construction of it.
3 & 4 Will.4, provisions of the said act of King Henry the Seventh, have c. 74, 8. 16. rendered valid a fine or common recovery levied or suffered by
her of such lands (9).
(9) By stat. 11 Hen. 7, c. 20 (confirmed by stat. 32 Hen. 8, c. 36, s. 2), “if
any woman who has any estate in dover or for life, or in tail jointly with her husband, or only to herself, or to ner use, in any lands or hereditaments of the inheritance or purchase of her husband (Co. Litt. 326 b), or given to the husband and wife in tail or for life, by any of the ancestors of the husband, or by any other person seised to the use of the husband, or of bis ancestors, 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 against them, or any of them, or any other seised to their or either of their use; all such recoveries, discontinuances, alienations, releases, confirmations and warranties shall be utterly void and of none effect.” And a right of entry is given to the persons entitled to the estate, and if such alienation were made by such wife and her second husband, such entry may be made during his life; but after his decease such women may re-enter and enjoy according to their first estate : but women if sole at the time of such alienation are barred, and an immediate right of entry is given to the persons entitled. The statute excepts discontinuances and recoveries made with the consent of the persons next entitled to the inheritance, and preserves the widow's right to alien for the term of her life only.
The last-mentioned statute extends not only to cases in which the gift is confined to the issue of the husband (Foster v. Pitfal, Cro. Eliz. 2, 524), but to a limitation to the heirs of the body of the wife in tail general, with a remainder or reversion in favour of the husband or his ancestors. (Symson v. Turner, 1 Eq. Cas. Abr. 220; see Gretton v. Hanard, 6 Taunt. 94; S. C., 2 Marsh. 9.) Where an estate is settled partly in consideration of the marriage, and partly in consideration of the money paid, the consideration of marriage will prevail and bring the case within the statate. (Villars v. Beaumont, Dyer, 145 a; Watkins v. Lewis, 1 Russ. & M. 390.)
Some cases, though within the words of the statute, have been construed not to be within its meaning, as where an estate was devised by the husband to his wife in tail, with remainder over to a stranger in fee. (Cro. Eliz, 2; 1 Leon. 261.) So, also, where the husband purchased an estate, but the whole consideration was paid by the wife's sister upon condition that such estate should be settled to the use of the husband and wife in tail: it was held, that the alienation of the wife after the death of the husband was valid, and not within the act. (Watkins v. Lewis, 1 Russ. & M. 378.) The statute 11 Hen. 7, c. 20, being made for the protection of the interests of the issue, did not apply when the heir in tail himself joined with his mother either in a fine, or in the conveyance declaring the uses it was intended to effectuate. (Curtis v. Price, 12 Ves. 97. See the cases on the lastmentioned statute collected in 1 Roper on Husband and Wife, Bright, pp. 497, 515; Cruise's Dig. tit. XXXVI. c. 10; Prest. Conv. 19–21, 146–149.)
Repeal of 11 Hen. 7, c. 20. Except as to lands 17. Provided always, and be it further enacted, that, except, before this act,
as to lands comprised in any settlement made before the passing the act 11 Hen. 7, of this act, the said act of the eleventh year of the reign of his c. 20, repealed.
Majesty King Henry the Seventh shall be and the same is hereby repealed.
Reversion in Crown, &c., not to be barred. "The power of dis- 18. Provided always, and be it further enacted, that the position not to extend to certain power of disposition hereinbefore contained shall not extend to tenants in tail. tenants of estates tail, who, by an act passed in the thirty-fourth
and thirty-fifth years of the reign of his Majesty King Henry the Eighth, intituled, " An Act to embar feigued Recovery of