c. 74, s. 13.

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 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 such 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."

Fines and recoveries may be enrolled in the office Court of Common Pleas.

of registrar of

Sect. 4. "That, subject to such orders as the Court of Common Pleas from time to time shall make, any person may at any time henceforward cause the writ, concord, chirograph, proclamation, appearance, warrant of attorney, and all or any other proceedings in any fine or recovery levied or suffered in any of the said abolished courts, and now extant among the 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 Pleas shall have the same power of amending any fine or recovery, and the record or enrolment thereof, whether as now extant, or as such fine or recovery, 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 December, one thousand eight hundred and thirty-three, shall be made or entered into by any tenant in tail thereof, shall be 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.

Saving the

amending power of Court of Com

mon Pleas.

3 & 4 Will. 4, c. 74, s. 15.

Power after the

31st of December,

1833, to dispose of lands entailed in

fee simple, or for a less estate,

saving the rights

of certain persons.

Corresponding clause of Irish Act.

Actual tenant in tail.

Equitable tenants in tail.

Tenant in tail in contingency.

Disentailing deed executed by tenant for life.

VII. DISPOSITION OF LANDS ENTAILED.

General enabling Clause.

15. After the thirty-first day of December, one thousand eight hundred and thirty-three, every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all 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 disposition is by this act authorized to be made (p).

* The remainder of the corresponding clause in the Irish act, 4 & 5 Will. 4, c. 92, s. 12, runs thus: "whose estates are to take effect after the determination 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 settlement or 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."

(p) Actual tenant in tail means exclusively the tenant of an estate 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.)

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 recoveries of equitable estates, see note to sect. 11, ante, p. 314.

The owner of a contingent estate tail was deemed incompetent to suffer 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 contingent interests, see note to sect. 20, post.

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, 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 1,2007. 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, remainder to B. in fee. In fact, A. was tenant in tail, not tenant for life of 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. Jones, 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 devises and springing uses. (1 Hayes, Conv. 135, 5th ed.) And it seems that a disposition under this act will have a similar operation. "All estates 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 disentailing 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.)

3 & 4 Will. 4,

c. 74, s. 15.

Effect of disposi tion under statute upon executory limitations.

A rent being an incorporeal hereditament, and susceptible of the same Tenant in tail 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 novo, 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.

tion not to be

in tail ex provi

sione viri, under 11 Hen 7, c. 20,

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 King Henry the Seventh, intituled "Certain Alienations made by the Wife of the Lands of her deceased Husband shall be 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

S.

Y

except with

assent.

c. 74, s. 16.

3&4 Will. 4, provisions of the said act of King Henry the Seventh, have rendered valid a fine or common recovery levied or suffered by her of such lands (q).

The stat. 11 Hen. 7, c. 20, and construction of it.

Except as to lands

in settlements

before this act,

(7) 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 dower or for life, or in tail jointly with her husband, or only to herself, or to her 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 his 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. Haward, 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 statute. (Villars v. Beaumont, Dyer, 145a; 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, by Bright, pp. 497, 515; Cruise's Dig. tit. XXXVI. c. 10; Prest. Conv. 19-21, 146-149.)

Repeal of 11 Hen. 7, c. 20.

17. Provided always, and be it further enacted, that, except, 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 Majesty King Henry the Seventh shall be and the same is hereby repealed.

c. 20, repealed,

"The power of disposition not to extend to certain tenants in tail.

Reversion in Crown, &c., not to be barred.

18. Provided always, and be it further enacted, that the power of disposition hereinbefore contained shall not extend to 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

Lands wherein the King is in Reversion," or by any other act, are restrained from barring their estates tail, or to tenants in tail after possibility of issue extinct (r).

(r) Whenever there is any reason to suspect that an estate has belonged to the crown, it is necessary to require the production of the original grant from the crown, or to search for it.

3 & 4 Will. 4

c. 74, s. 18.

By statute 34 & 35 Hen. 8, c. 20, no feigned recovery by assent of parties Tenants in tail of against any tenant in tail of any lands giren by the crown, whereof the the gift of the reversion or remainder, at the time of such recovery had, shall be in the crown. king, shall bind the heirs in tail, whether any voucher be had in such re- 34 & 35 Hen. 8, covery or not; but after the death of such tenant in tail, the heirs in tail c. 20. may enter and enjoy the lands according to the form of the gift; the recovery or any other thing done or suffered by or against such tenant in tail notwithstanding. In order to bring an estate tail with a reversion in fee to the crown within the protection of the act, it must be clearly a gift or provision of the king; for where a grant made by the crown, reserving the reversion on failure of the issue of the grantee, was made neither as a gift nor as a reward for services, but as an act of justice in execution of some secret trust or obligation binding the crown, it was held not to be within that act, and that a recovery barred the reversion. (Perkins d. Voule v. Sercell, 4 Burr. 2223; S. C., 1 Bl. Rep. 654; see Co. Litt. 372 b, 373 a; Cruise's Dig. tit. XXXVI. c. 10, s. 42-51; 1 Prest. Conv. 18, 19, 144-146, 221.) If the king, having made a gift in tail, reserving the reversion to himself, afterwards gave leave to the tenant in tail to suffer a common recovery, for the purpose of passing the reversion out of himself in order to be reconveyed to him, which was done accordingly, the tenant in tail or his issue might afterwards bar such reversion by a common recovery, notwithstanding the statute, because the reversion having been once severed from the crown the privity of estate was gone, and the statute was intended only to restrain where the reversion continued in the crown without any alteration. (Earl of Chesterfield's case, Hardr. 409.) That mode of barring the crown was prevented by statute 1 Anne, sess. 1, c. 7, which restrains the alienation of lands belonging to the crown, except for a term not exceeding thirty-one years or three lives, or for a term determinable upon one, two or three lives; but see statute 34 Geo. 3, c. 75; 39 & 40 Geo. 3, cc. 86, 88; 47 Geo. 3, c. 24.

A common recovery previously to the statute of Hen. 8, did not bar the reversion or remainder in the crown, because it was not like common persons bound by the fictitious recompense on which the effect of a recovery was founded. (2 Roll. Abr. 293, 294; Hob. R. 339.) It was decided that, where tenant in tail male with the reversion in the crown, before the statute 34 & 35 Hen. 8, c. 20, suffered a common recovery with single voucher, the recoveror gained a base fee determinable on failure of issue male of the donee; that such base fee was descendible and alienable; that the issue in tail were barred, and the ancient reversion remained in the crown, which might come into possession and take effect whenever there should be a failure of such issue. (Bro. Tail. 41; Cro. Car. 430; Plowd. 555; Dyer, 32 a; Neal d. Duke of Athol v. Wilding, 1 Wils. 275.) It was a question in a recent case, whether a reversion in an estate in Ireland (to which the statute 34 & 35 Hen. 8 does not extend, Co. Litt. 372 b, n. 3), after an estate tail, which had vested in the crown in consequence of the attainder of the reversioner, could be barred by a common recovery suffered by the issue in tail when in possession. The point was considered so doubtful by the House of Lords, that a purchaser, who objected to the title on that ground, was held not bound to accept it. (Blosse v. Clanmorris, 3 Bligh, 62. See 19 & 20 Vict. c. 120, s. 42, post.)

Where tenant in tail of the gift of the crown was disseised, and the disseisor levied a fine with proclamations, and five years elapsed: it was held, that the issue in tail was not barred. (Stratfield v. Dover, Cro. Eliz. 595; but see 1 Sid. 166; 1 Roll. R. 171; and the remarks on Stratfield v. Dover, in Earl of Abergavenny v. Brace, L. R., 7 Exch. 156, 176. By letters patent, King Charles the Second, in the 25th year of his reign,

Recoveries by tenants in tail crown.

where reversior.

Tenant in tail of the gift of the crown disseised;

fine by disseisor.