[Now by the stat. 3 & 4 Will. 4. c. 74. a married woman may, by a deed in conformity with its provisions, not only bar her dower, but, with the concurrence of her husband, dispose of her real estate in the same manner as if she were a féme sole.]

yet that it could not bind the wife's heir. Hence it is inferred that Lord Hardwicke was of opinion that the mere limitation of a real estate to the separate use of a married woman and her heirs does not confer upon her the power of disposing of the reversion as she pleases. Mr. Roper, in treating of this subject, thus lays down the doctrine :-With respect to rents and profits of real estates, a gift of them to the wife for her separate use enables her to dispose of them as a feme sole in the same manner as she may do of personal estate so limited to her: but in the following respect there is a difference between the two estates; a limitation of real estate to the wife in fee to her sole and separate use, without expressing more, will not enable her to dispose of it during the marriage otherwise than by fine or recovery; because no power having been given to her by the instrument to make any disposition of the property, she can only do so by the mode prescribed by the general law, and if she omit to do so her heir will take the estate; but it has been settled that when personal property is given or agreed to be given, to the separate use of a married woman, she may dispose of it as a feme sole to the full extent of her interest, although no particular form to do so is prescribed in the instrument for 2 Rop. Bar. & Fem. 185. citing 1 Bro.

the purpose.

C. C. 16.

[The late case of Doe v. Scott, 4 Bing. 505,, confirms the preceding distinction so far as respects real estate there an estate was devised to a trustee in fee in trust for the separate use of S. S., and to convey the same to her, her heirs and as

C C

Secs. 41. &c. 77.79. &c.

See Watk, on Desc. 18. n. (z), p. 28. 2d edit.

As an use immediately arose on a fine, such use was immediately executed by the statute, and might be led or declared as the parties pleased.⚫

signs, free from the debts and control of her present or any future husband, and to permit her to take the rents and profits. S. S. being married, devised the property in question, and died in the lifetime of her husband: the Court of C. B. decided, that S. S. had no power to devise.]

The proper way of limiting real estate to a married woman for her separate use is to convey it to trustees and their heirs to such uses as the wife shall, whether single or covert, direct or appoint, and in default of appointment and subject thereto in trust for the separate use of the wife, with a clause making the receipts of the wife or the person to whom she should appoint or assign the same valid discharges, with a power in the wife to change the trustees as often as shall be necessary.

[* Mr. Butler in his valuable note to Co. Litt. 271 b. observes, "With respect to a feoffment, fine, and common recovery, the transfer or transmutation of the possession from the feoffor, conusor, and recoveree to the feoffee, conusee, and recoveror, is effected solely by the operation of these conveyances or assurances at common law; and if the use is declared to the feoffee, conusee, or recoveror in fee simple, the conveyance is completed at the common law, in the same manner as if the statute of uses had never passed. It is only when the use is declared to a third person that the statute has any operation; and then by the operation of the statute, the possession previously transferred or transmuted to the feoffee, conusee, or recoveror, by the operation of the feoffment, fine, and common recovery at the common law, is divested from the feoffee, conusee, or recoveror, and vested in the cestui que use by the statute. Vid. sup. pp. 256., 257.]

[We may in this place remind the student that, with the exception of the bars by estoppel and non-claim, all the advantages which formerly resulted from a fine, may now be obtained by a deed of disposition in conformity with the statutes by which fines were abolished: and the power of alienation possessed by the tenant in tail through the medium of a fine, is now considerably extended by the beneficial provisions of those statutes which substitute a more simple and less expensive mode of assurance.]

CHAP. XVI.

2 Bl. Comm.

357. Touchst.

c. 3. p. 37.

Pig. on Recov.

5 Cruise, Dig. tit. 36.

OF A RECOVERY.

As a fine was the compromise of a fictitious suit, so a recovery was a fictitious suit carried on to judgment.

By the common law, the person who had the immediate freehold, or freehold in possession, was to answer the claims of strangers. Against him the writ, or præcipe, was brought. Hence, no recovery could be suffered unless the recoveree had the freehold in possession in him; as the recovery, or suit, was founded on the præcipe, which could only be sued out against the tenant of the freehold.

A person therefore, who had an estate tail in remainder, could not suffer a recovery alone; the tenant of the particular estate of freehold in possession must have concurred, against whom, or against whose alienee, the præcipe must have been brought; and the remainder-man must have come in by voucher. A recovery might

indeed, have been suffered of a trust estate without the concurrence of the person in whom the legal estate was vested; but this was only from necessity, and to preserve an analogy in the assurance, or mode of destroying an estate tail.*

very.

* A recovery of the equitable estate must in all respects Equitable recohave imitated a recovery of the legal estate, so as to keep up a strict analogy between them.

1st. There must have been a recovery deed, or rather a conveyance of the equitable freehold to the tenant to the præcipe, if it was intended to suffer the recovery with double voucher.

2nd. There must have been an original writ, with judgment and execution thereon, the same as in a legal recovery; for there was not any distinction as to form and ceremony between an equitable and a legal recovery.

3rd. There must have been a good tenant to the præcipe. He must have had an estate of equitable freehold; that is, a right to the immediate beneficial interest in possession. Thus, if the legal estate in fee was limited to trustees in trust for B. for life, with remainder in trust for C. in tail, with remainders over, C. could not suffer an equitable recovery without the concurrence of B. But it was not requisite that the tenant to the præcipe should have the equitable distinct from the legal freehold; the legal estate in him was not any objection to an equitable recovery. 3 Ves. 126. 276. Thus, if A. was the owner of both the legal and equitable estate for life, his concurrence was nevertheless necessary; and a recovery suffered on a writ brought against a tenant, to whom the legal estate had been conveyed in conjunction with the beneficial interest, was deemed an equitable recovery. 1 Bro. C. C. 72. 3 P. Wms. 171. 3 Ves. 128. In a case where the legal estate was limited unto and to the use of A. for life, with remainders over, and afterwards the next remainderman covenanted to settle the estate