in some cases, to a fine, though a fine might bar the estates, as a fine might let in the incumbrances of the ancestors as well as those of the cognizors. In some instances, however, a fine was preferable to a recovery, as the former Pig. Recov. 32 was an estoppel by the statute, where a recovery would not estop. -34-55. 5 Cru. Dig. Plowd. 515. A recovery might be suffered by a tenant in fee-simple in order to strengthen the title. So, as it was a suit in the progress of which a féme covert was secretly examined, it would bar her of Plowd. 514. her claim to dower.* * In an anonymous case in 11 Mod. 121., it is said to have been holden, that if a tenant in tail levies a fine, he is for ever hindered from suffering a recovery to destroy the remainder in fee, "because the fine has turned the estate tail into a base fee, and determined all privity of estate existing between him and the remainderman, who could not now be vouched over, unless he voluntarily consented to it." The law on this point is taken to be otherwise (ante, p. 383.), clearly, if the use on the fine were declared to a stranger; but if it were declared in favour of the tenant in tail, then the want of privity between him and the remainderman, as above noticed, seems to present an impediment to his suffering a recovery while he was seised in respect of the base fee. If he died leaving the base fee to descend to his general heir, and the heir under the entail was a different person, then that heir might suffer a recovery; but the above case, with some shew of principle, throws a doubt at least on the question, whether a tenant in tail, having levied a fine and taken back a base fee, could himself suffer a recovery afterwards. If the tenant in tail and remainderman in fee joined in a fine, then the base Eare v. Snow. 4 & 5 Will. 4. c. 92. s. 16.(1). fee became merged in the reversion, and a recovery could not, it is apprehended, have been afterwards suffered: for although the use resulted to the parties to the fine according to their former ownership, yet the tenant in tail took back a base or determinable fee by original limitation, arising out of the amalgamated seisin of the estate tail and remainder; and it is settled, that the tenant of a determinable fee could not suffer a recovery. Pig. 129. 1 Mod. 111. [By the 19th sect. of the 3 & 4 Will. 4. c. 74, it is enacted, that after the 31st day of December, 1833, in every case in which an estate tail in any lands shall have been barred and converted into a base fee, either before, on, or after that day, the person, who if such estate tail had not been barred, would have been actual tenant in tail of the same lands, shall have full power to dispose of such lands, 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 the base fee into which the estate tail shall have been converted, so as to enlarge the base fee into a fee-simple absolute: saving always the rights of persons in respect of estates prior to the estate tail which shall have been converted into a base fee, and the rights of all other persons, except those against whom such disposition is by the act authorized to be made. In this place it may be observed that the right of alienation which a tenant in tail formerly enjoyed through the medium of a common recovery he may now exercise, by a deed of disposition in conformity with the above statutes; which also confer upon him some additional powers.] PRINCIPLES OF CONVEYANCING, &c. &c. BOOK III. OF CONVEYANCES, WITH respect TO PARTIES. CHAP. I. OF AN INFANT. may do Co. Litt. 2 b. AN infant may take by purchase, as he anything which is manifestly for his advantage; and, if a feoffment be made, livery may be given to him in person, or even to another whom he shall appoint as his attorney; though the appointment of an attorney by an infant is not valid in itself at law.* *The acts of infants are distinguished into those which are absolutely void, and those which are voidable merely. Co. Litt. 2. b. But he may waive such conveyance when he comes of age; or if he do not then actually agree to it, his heirs may waive it after him.* This distinction is very important, 1st, because a voidable contract may be afterwards established by a confirmation either express or implied, but a void contract cannot (antè, chapter Confirmation); and, 2ndly, because where the contract is actually void, neither party is bound by it; but where it is only voidable, the power of rescinding the contract is vested in the infant alone,—the other party being absolutely bound, if the infant, when of full age, chooses to hold him to his agreement, Clayton v. Ashdown, 9 Vin. Abr. 393. Holt v. Ward, Clarencieux, 2 Str. 937. The precise criterion, however, of this distinction is not clearly settled. On the one hand, it is said to depend entirely on the circumstance, whether the act is for the advantage or disadvantage of the infant; and that if it is an act which cannot be to the advantage of the infant it is actually void, but if it may be for his benefit it is only voidable. Zouch v. Parsons, 3 Burr. 1794. Holt v. Ward, Clarencieux, 2 Str. 937. On the other hand, the distinction has been made to depend solely on the mode in which the transaction takes place; it being said that all such gifts, grants, or deeds of an infant, as do not take effect by the delivery of his hand are void, but that those which do so take effect are only voidable. Perk. s. 12. The case referred to in the text, in 1 Roll. Abr. 730., was decided on the former of these grounds; the words being, “If a man makes a feoffment to an infant, and the infant makes a letter of attorney to another to receive livery for him, it is good, because it is for his benefit." The latter of these grounds was adopted by the court in the case of Zouch v. Parsons, 3 Burr. 1794. * It is not necessary that the infant should expressly agree to the bargain to be bound by it: an implied agreement is in All conveyances, however, by an infant are voidable by him or his heirs, except a fine or recovery, which are only voidable during his minority.* All these conveyances are, never all cases sufficient; and an agreement may be implied from any act amounting to an assent to the transaction. Thus the continuance in possession after he comes of age, of lands demised to him during infancy, is an acceptance of the lease. 1 Roll. Abr. 731. K. So the receipt of rent after he attains twenty-one, in respect of lands demised by him during infancy, amounts to a confirmation of the grant. Cecil v. Salisbury, 2 Vern. 224. Smith v. Low, 1 Atk. 489. Stokes v. This dif *The distinction is between matters in pais, as deeds, and matters of record, as recognizances, fines, recoveries. Matters in pais he may avoid either within age, or when he is of full age; but matters of record can only be avoided during minority. If, however, his age be tried during his minority, by the inspection of the judges, and it be recorded that he is within age, in that case even a matter of record may be avoided after the infant attains twenty-one. Co. Litt. 380 b. But though a recovery suffered by an infant in person could be avoided only during his minority, yet if he suffered a recovery by an attorney, it might be avoided at any time. Oliver, 5 Mod. 209. Zouch v. Michil, Godb. 161. ference arises from the distinction already noticed, between matters in pais and matters of record. Where the recovery was suffered by the infant in person, it was wholly a matter of record, and therefore avoidable only during minority; but where it was suffered by attorney, the appointment of the attorney being a matter in pais might be avoided at any time; and that being avoided, the recovery founded upon it must necessarily fall to the ground with it. But on the other hand, where the matter of record is itself the basis of the transaction, or the principal, and the matter in pais is the accessory, that is, founded upon the matter of record, there the matter in pais Touchst, 232. Ibid. 7. 5 Cru. Dig. 127. Ibid. 378. 144. Zouch v. Par sons. |