[after her husband's death, unless with the concurrence of those in reversion, could suffer a recovery of lands. entailed on her by her husband, or on her and her husband by any of his ancestors, which was called an estate tail ex provisione viri (c); and by the 14 Eliz. c. 8, the like provision applied to the estate of a tenant in tail after possibility of issue extinct. Moreover, by the 34 & 35 Hen. VIII. c. 20, no recovery had against tenant in tail of the king's gift, whereof the remainder or reversion was in the king, could bar such estate tail, or the remainder or reversion of the crown (d).] 2. A recovery, like a fine, would bind a married woman when she became a party to it with her husband's concurrence; and, as in the case of a fine, she was privately examined by the court in such cases, to ascertain that she acted without compulsion (e). 3. And lastly, a recovery suffered by a tenant for life worked a forfeiture of the particular estate, and by consequence destroyed all contingent remainders expectant thereon (f). It was, however, expressly provided by the 14 Eliz. c. 8, that a recovery so suffered, without the consent of the persons in reversion or rested remainder, should as against such persons be utterly void. [Having now considered fines and recoveries separately, it will be convenient to consider one incident which was common to both species of assurance, viz., the deed to lead or to declare their Uses. For as the fine sur cognizance de droit come ceo, &c., conveyed an absolute estate without any limitations to the conusee, and as common recoveries conveyed the like estate to the recoveror, these assurances could not, by themselves, be made to answer the purposes of family settlements. A (c) 5 Cruise, Dig. 399. (d) Perkins v. Sewell, (1768) 1 Bl. Rep. 654; Duke of Grafton v. Birmingham Railway Company, (1838) 5 Bing. N. C. 27. (e) 5 Cruise, Dig. 392. (f) Doe d. Davies v. Gatacre, (1838) 5 Bing. N. C. 609. [deed limiting the Uses was therefore necessary. This deed, if it was made previous to the fine or recovery, was called a deed to lead the Uses, and if subsequent, a deed to declare the Uses. As if A. (tenant in tail, with reversion to himself in fee) wished to settle his estate on B. for life, remainder to C. in tail, remainder to D. in fee, he had no power of doing so effectually, while his own estate tail was in being. He therefore usually, after making the settlement proposed, covenanted to levy a fine to (or if there were any intermediate remainders, to suffer a recovery in favour of) E., and directed that the same should enure to the Uses in such settlement mentioned; and the fine when levied, or the recovery when suffered, would enure to the Uses so specified, and no other, these Uses being executed immediately by force of the Statute of Uses. Or, if a fine or recovery were had without any previous settlement, and a deed were afterwards made between the parties, declaring the Uses to which the same should be applied; this would be equally good as if it had been expressly levied or suffered in consequence of a deed directing its operation to those particular Uses. For, by the statute 4 & 5 Anne, c. 3, indentures to declare the Uses of fines and recoveries, made after the fines and recoveries had and suffered, were made good and effectual in law; and the fine or recovery was declared to enure to such Uses accordingly.] We will now proceed to consider the simpler assurances which have, by the Fines and Recoveries Act, 1833, been substituted for fines and recoveries :- And, first, with reference to the barring of estates tail, the statute provides in substance as follows (g):-That every actual tenant in tail (h), whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of the lands entailed, for an estate in fee simple absolute, or for any less estate, as against all (g) 3 & 4 Will. 4, c. 74, s. 15. is the tenant of an estate tail which shall not have been barred." persons claiming under the estate tail, or in respect of any ulterior estate (including the crown). And such disposition may be made by any of the assurances (a will only excepted) which would have sufficed for the purpose, supposing the estate to have been a fee simple absolute; so that the disposition be an actual conveyance, and not one resting in contract only, and so that it be by deed, and enrolled in Chancery (now the Central Office) within six calendar months after execution (i). An estate tail in lands of freehold tenure, may consequently now be barred as against the grantor himself, the issue in tail, and all others in remainder, reversion, or other expectancy by any of the conveyances (whether at common law or under the Statute of Uses) which have been discussed in former chapters, always supposing such conveyance to be by deed, and that the deed is duly enrolled within the time. limited in that behalf. Supposing the enrolment made in due time (k), the deed takes effect from the execution (1) ; but a subsequent deed, if first enrolled, will be entitled to priority (m). And a bargain and sale, if enrolled under the Fines and Recoveries Act, need not also be enrolled under the Statute of Inrolments (n). It will be recollected, that though, by a fine, the issue might always be barred at pleasure, a common recovery (which alone barred those in remainder or reversion) was ineffectual when suffered by a tenant in tail not having an estate of freehold in possession, unless he obtained the concurrence of the person in whom the freehold in possession was vested. It was thought desirable to preserve this distinction for the purpose of affording protection to family settlements, in which (we may remember) it is usual to vest in the parent a life estate and to limit estates in remainder to the sons successively in tail, expectant on the determination of such life estate. Accordingly, by sect. 34 of the Act, it is provided that no disposition, by a person who is tenant in tail under a settlement shall be effectual under the Act to bar any person but those claiming by force of the entail (that is to say, the issue only), unless it is made with the consent of the "protector of the settlement"; and in the absence of any express provision in the settlement appointing another person to the office of protector, the person who is owner of the first estate of freehold or for years determinable on a life or lives prior to the estate tail is to be protector. This last provision, however, it is material to remark, is expressly confined to the case where the prior estate is created by the same settlement as the entail; for where it is constituted by a different assurance, the Act leaves the tenant in tail to the free exercise of his power of disposition. But the following estates, namely, an estate created by appointment, under a power in the settlement (sect. 1); an estate confirmed or restored by the settlement (sect. 25); an estate resulting to the settlor (sect. 22); and an estate by the curtesy, in respect of the estate tail, or of any prior estate created by the same settlement (sect. 22), are respectively to be considered as "created by the settlement" (o). Where an assurance is executed by a tenant in tail, in such form and with such attendant ceremonies as the statute requires, it passes an indefeasible estate in fee simple absolute, or for life, or years, or otherwise according to the nature of the limitation. If, however, it be executed without the consent of the protector, in a case where a protector exists (p), its effect is only to bar the tenant and his issue in tail; and the rights of other persons claiming in expectancy on the estate tail are in that case not affected (q). So that an assurance purporting to be in fee simple absolute, will in such latter (0) 3 & 4 Will. 4, c. 74, s. 22. 15 Eq. 178. case convey no more than a base fee determinable on the failure of issue (r). It is, however, in the power of the tenant, by afterwards obtaining the consent of the protector, and making a new disposition thereon, or by confirming his former disposition when the protectorship has ceased, to enlarge such base fee into a fee simple absolute (s). And in the particular case, when, for want of the protector's consent, such base fee is created, and the immediate remainder or reversion in fee happens also to become united in the same person with the base fee, the latter will, without any such consent or new disposition, enlarge of itself into a fee simple absolute (t). And by the Real Property Limitation Act, 1874, s. 6, when a person is in possession of a base fee for twelve years after the original tenant in tail might have barred the remainders upon it without the consent of anyone, the base fee is to become a fee simple. Finally, whether the bar effected be general or partial only in its nature, it is to be understood that in all cases it operates without prejudice to the interests of other parties not claiming by force of, or in expectancy upon, the entail. Consequently, it leaves all estates prior to the estate tail undisturbed (u). Although, as we have said, the owner of the first estate of freehold is usually the protector of the settlement (r), the Act provides specifically, that a lessee at a rent, or anyone entitled as dowress, bare trustee, heir, executor, administrator, or assign (y), shall not be deemed the protector. Further, the settlor himself may, in and by the settlement creating the entail, appoint any person or persons in esse (not exceeding three in number) to act in the capacity of protector (the tenant of the prior estate being included in the number or not, at the pleasure of the settlor), and may also insert in the settlement a power for the substitution of others, in (r) S. 34. (s) Ss. 19, 35. (0) S. 39. (u) Ss. 15, 19. (r) Ss. 29, 30, 31. |