A dowress who had not entered was not a necessary party to a 3 & 4 Will. 4, recovery (4 Br. C. C. 525; see Gilb. Ten. 26; 5 Cru. Dig. p. 246, pl. 18); c. 74, s. 11. nor a person holding a freehold lease (14 Geo. 2, c. 20). A recovery might be void in part for want of a good tenant to the præcipe as to that part (Row v. Power, 2 Bos. & Pull. 1; Moody v. Moody, Ambl. 649; see Co. Litt. 187; 2 Br. C. C. 180; Winchester's case, 3 Rep. 1; Collyer v. Mason, 2 Brod. & Bing. 685).

in which fines

this act.

12. Provided always, that where any fine or common recovery Certain cases shall before the passing of this act have been wholly reversed, and recoveries such fine or recovery shall not be rendered valid by this act; shall not be and where any fine or common recovery shall before the passing made valid by of this act have been reversed as to some only of the parties thereto, or as to some only of the lands therein comprised, such fine or recovery shall not be rendered valid by this act so far as the same shall have been reversed; and where any person who would have been barred by any fine or common recovery, if valid, shall before the passing of this act have had any dealings with the lands comprised in such fine or recovery, on the faith of the same being invalid, such fine or recovery shall not be rendered valid by this act; and this act shall not render valid any fine or common recovery as to lands of which any person shall at the time of the passing of this act be in possession in respect of any estate which the fine or common recovery, if valid, would have barred, nor any fine or common recovery which, before the passing of this act, any court of competent jurisdiction shall have refused to amend; nor shall this act prejudice or affect any proceedings at law or in equity, pending at the time of the passing of this act, in which the validity of such fine or recovery shall be in question between the party claiming under such fine or recovery, and the party claiming adversely thereto; and such fine or recovery, if the result of such proceedings shall be to invalidate the same, shall not be rendered valid by this act; and if such proceedings shall abate or become defective in consequence of the death of the party claiming under or adversely to such fine or recovery, any person who but for this act would have a right of action or suit by reason of the invalidity of such fine or recovery shall retain such right, so that he commence proceedings within six calendar months after the death of such party.

See as to this section, Davies v. D'Arcy (3 Ir. C. L. Rep. N. S. 617; 4 Ir. Ch. Rep. N. S. 87; Sugd. R. P. Stat. 2nd ed. 187).

5. Custody of the Records of Fines and Recoveries.

[Sect. 13 provided for the custody of the records of fines and recoveries which are now kept at the Central Office of the Supreme Court (see 5 & 6 Will. 4, c. 82; 42 & 43 Vict. c. 78, s. 5). As to fines and recoveries in the Courts of Great Session in Wales, see 5 Vict. c. 32; Doe v. Price, 16 M. & W. 603.]

3 & 4 Will. 4, c. 74, s. 14.

Estates tail, and estates expectant thereon, no longer barrable by warranty.

Power after

the 31st of December, 1833, to dis

entailed in

fee simple, or for a less

estate, saving the rights of

certain persons.

6. 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.

See R. P. Lim. Act, 1833, s. 39, ante, p. 182.

7. Disposition of Lands Entailed.

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, pose of lands 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.

Corresponding clause of Irish Act.

Actual tenant in tail.

Equitable tenants in tail. Tenant in tail in contingency.

* 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 defeasance 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."

The words "actual tenant in tail" are defined by sect. 1, ante, p. 263. 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. 272.

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.). Until the contingency happens the only effect of the disposition ought to be to substitute a contingent fee for the contingent estate tail (Sugd. R. P. Stat. 192). Where

successive entails were limited subject to a proviso that in a certain event 3 & 4 Will. 4, the second entail was to be postponed to the third entail, the operation of c. 74, s. 15. the proviso was held to be "in defeasance" of the second entail, and to be barred by a disentailment thereof (Millbank v. Vane, 1893, 3 Ch. 79). And where, after the death of A., who was tenant for life, trustees were directed to convey real estate to the use of B. in tail, but if B. should be then dead to the use of the person who should then be the first heir male of the body of B. in tail, with remainder over, it was held that, during the life of A., B. had a vested equitable estate tail in remainder expectant on the decease of A., and that the subsequent estates were barred by B.'s disentailing deed, being estates to take effect in a certain event after, if not in defeasance of, B.'s estate tail (Cardigan v. Curzon Howe, 1901, 2 Ch. 479). In both the last cases it was unsuccessfully argued that the effect of the limitations was to create alternative gifts. See, further, Doe v. Scarborough, 3 Ad. & Ell. 43, under the old law.

Where land was devised to trustees on trust for sale for certain purposes, and subject thereto to certain persons in tail, it was held not necessary to bar the entail on a sale by the trustees (Re Skerrett, 2 Dru. & War. 585).

A disentailing deed executed by a tenant for life has no operation under Disposition this section (Slater v. Dangerfield, 15 M. & W. 263; as to the effect of a by tenant recovery suffered by a tenant for life, see Smith v. Clifford, 1 T. R. 738; for life. Meredith v. Leslie, 6 Br. P. C. 388; Doe v. Scarborough, 3 Ad. & Ell. 43). But a proper disentailing deed will bar the entail, though the tenant in tail who executes it is recited in it to be tenant for life (Evans v. Jones, Kay, 29). An alien might suffer a common recovery (Leon. 404; Shep. Touch.

404), and may execute a disentailing deed (1 Jarm. Wills 44, 5th ed.). Where by an alien, the tenant in tail is a lunatic, the Court of Lunacy can bar the entail, but lunatic, &c. the power will not be exercised so as to affect the remaindermen (Re Pares, Lillingston v. Pares, 12 Ch. Div. 333; see Lunacy Act, 1890, s. 123). A base fee has been enlarged where it was for the benefit of the lunatic (Re Sefton, 1898, 2 Ch. 378). An infant has been ordered under Debts Recovery Act, 1830, s. 11, to execute a disentailing deed (Radcliffe v. Eccles, 1 Keen, 1:0; see Re Montagu, Faber v. Montagu, 1896, 1 Ch. 549). A married woman is not prevented by a restraint on anticipation from barring an entail (Cooper v. Macdonald, 7 Ch. Div. 288). Where a settlor gives an estate tail, he cannot restrict the power of the tenant in tail to bar it (Dawkins v. Penrhyn, 4 App. Cas. 64).

A disentailing deed executed by a tenant in tail does not destroy the Operation of interest he possesses in the estate, but enables him, by the exercise of the disentailing deeds under power which that interest gives him, to render it perpetual (Lilford v. A.-G., L. R. 2 H. L. 63). As to the destruction of powers by a disposi- this section. tion under the statute, see Sugden, Powers, 91, 8th ed.; Hill v. Pritchard (Kay, 394); Re Wright and Marshall (28 Ch. D. 93).

A common law grant by deed of land to a person who does not execute the deed and afterwards disclaims, is not effectual to bar an entail under this section (Peacock v. Eastland, 10 Eq. 17). But the fact that, in the case of a conveyance under the Statute of Uses, the grantee to uses does not execute the deed and afterwards disclaims, will not render the deed ineffectual to bar the entail (Re Dudson, 8 Ch. Div. 631).

The power of leasing conferred by this section on tenants in tail (see Leases by sect. 41, post) has become less material since the Settled Land Act, 1882, tenant in tail. which last act (sect. 58, sub-sect. 1, post) has enabled a tenant in tail to

exercise the powers under that act of a tenant for life.

Where a tenant in tail is a lunatic, the judge in lunacy may authorize

the committee to grant leases binding on all reversioners (Lunacy Act,

1890, ss. 120, 122; see S. L. Act, 1882, s. 62).

"Lands" in this act includes rents (sect. 1, ante). As to the effect of Entail of rent.

a recovery on entailed rents, see 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.

A declaration of trust is not such a disposition as is referred to in this section (Green v. Paterson, 32 Ch. Div. 108). See further, as to the mode in which the disposition can be made, sect. 40, post, p. 294.

16. Provided always, that where under any settlement made before the passing of this act, any woman shall be tenant in tail of lands within the provisions of 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 herein before 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 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.

By stat. 11 Hen. 7, c. 20, a woman who had 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, could not, being sole, or with any after-taken husband, except with the consent of the persons next entitled to the inheritance, or for the term of her life only, alien such estate (see Foster v. Pitfal, Cro. Eliz. 2, 524; Symson v. Turner, 1 Eq. Cas. Abr. 220; Gretton v. Haward, 6 Taunt. 94; Villars v. Beaumont, Dyer, 145 a; Watkins v. Lewis, 1 Russ. & M. 390; Cro. Eliz. 2; 1 Leon. 261; Curtis v. Price, 12 Ves. 97; Rochfort v. Fitzmaurice, 2 Dru. & War. 19; 1 Roper on Hus. & W. by Bright, pp. 497, 515; Cruise's Dig. tit. 36, c. 10; Prest. Conv. 19-21, 146-149).

[Sect. 17, repealing 11 Hen. 7, c. 20, was repealed by S. L. Rer. Act, 1874, without reviving the former act.]

18. Provided always, 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 feigned 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.

By statute 34 & 35 Hen. 8, c. 20, no feigned recovery by assent of parties against any tenant in tail of any lands given by the Crown, whereof the reversion shall be in the King, shall bind the heirs in tail (see Perkins v. Sewell, 1 Bl. Rep. 654; Co. Litt. 372 b, 373 a; Cruise's Dig. tit. 36, c. 10, ss. 42-51; 1 Prest. Conv. 18, 19, 144-146, 221; Chesterfield's case, Hardr. 409; 1 Anne, sess. 1, c. 7; 34 Geo. 3, c. 75; 39 & 40 Geo. 3, cc. 86, 88; 47 Geo. 3, c. 24; S. E. Act, 1877, sect. 55, post). As to the law before 34 & 35 Hen. 8, c. 20, see 2 Roll. Abr. 293, 294; Hob. R. 339; Bro. Tail. 41; Cro. Car. 430; Plowd. 555; Dyer, 32 a; Neal v. Wilding, 1 Wils. 275; Blosse v. Clanmorris, 3 Bligh, 62.

Notwithstanding 34 & 35 Hen. 8, c. 20, the entail of lands granted by letters patent to the first Duke of Grafton was held effectually barred by a bargain and sale, under sect. 15, ante (Graf on v. London & Birmingham

R. Co., 6 Scott, 719; see Com. Dig. Estates, B. 21; Bac. Abr. Fines and 3 & 4 Will. 4, Recoveries, 2nd Div. C.).

c. 74, s. 18.

Tenant in

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. tail of the gift 595; but see 1 Sid. 166; 1 Roll. R. 171; and Abergavenny v. Brace, L. R. 7 Exch. 176).

of the Crown disseised; fine by disseisor. Inalienable estates tail.

In several acts of parliament conferring estates on eminent individuals, tenants in tail are restrained from alienating such estates, except for their own lives, as in the case of the Duke of Marlborough, by 5 Anne, cc. 3, 4 (see Davis v. Marlborough, 1 Swanst. 74; Osborn v. Marlborough, 14 W. R. 886), the Duke of Wellington (see statutes 41 Geo. 3, c. 59, s. 6; 42 Geo. 3, c. 113, s. 6; 54 Geo. 3, c. 161, s. 28), and the Earl of Abergavenny (2 & 3 Ph. & M. c. 23; see Abergavenny v. Brace, L. R. 7 Exch. 145). An attempt to bring under the parliamentary settlement estates larger than those originally settled was held void (Howard v. Shrewsbury, 2 Ch. 760). By statute 14 Eliz. c. 8 (repealed by 26 & 27 Vict. c. 125), recoveries Tenants in against tenant by the curtesy, tenant in tail after possibility of issue tail after extinct, or otherwise, for term of life, or estate determinable upon life, possibility of issue extinct. were void against the reversioner, unless by the assent of the reversioner. See, however, Doe v. Gatacre (5 Bing. N. Č. 609). A tenant in tail after possibility of issue extinct had no power of barring the estate tail or the remainders expectant thereon, but for all purposes of alienation was considered merely as tenant for life (Co. Litt. 28 a; 11 Rep. 80), although not impeachable for waste.

Where lands were settled to the use of the wife for life for her jointure and in bar of dower, remainder to the sons and daughters successively of the marriage in tail, remainder to the heirs of the body of the husband and wife, and there was no issue of the marriage, the widow was held tenant in tail after possibility of issue extinct (Williams v. Williams, 15 Ves. 419; see Platt v. Powles, 2 M. & S. 65).

Tenants in tail where the reversion is in the Crown, or who are restrained S. L. Act, by act of parliament from barring the entail (with certain exceptions), 1882. and tenants in tail after possibility of issue extinct, can exercise the powers given to tenants for life by the S. L. Act, 1882 (see sect. 58, sub-sect. 1 (i), (iii), (vii), of that act, post). See also the powers of leasing in the case of a lunatic tenant in tail under Lunacy Act, 1890, ss. 120, 122.

19. After the thirty-first day of December, one thousand eight hundred and thirty-three, in every case in which an estate tail in any lands shall have been barred and converted into a base fee, either before or 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 (f); saving always the rights of all 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 this act authorized to be made.

Power after

31st December, 1833, to

enlarge base fees; saving rights of cer

tain persons.

(f) The remainder of the corresponding section of the Irish statute, Correspond4 & 5 Will. 4, c. 92, s. 16, runs thus: "including the King's most ing clause of excellent Majesty, his heirs and successors, as regards the title to his Irish act. [* Sic.]