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right of the remainderman'. In the case of heirs taking in remainder the doctrine of warranty was more strictly applied". Thus in the case of a feoffment, "to A. in tail, remainder to B. in tail, remainder to C. in tail," if A. died without issue, and B., succeeding, aliened with warranty and died leaving issue D., D. would not be bound by the warranty, unless he had assets; but if D. died without issue, and C. succeeded, C. would be bound by B's warranty, even if he had no assets. And this was called Collateral Warranty, as distinguished from the warranty with Assets, known as Lineal Warranty. The Courts also contributed to the strict enforcement of the Statute by the decision' that, though its terms omitted any mention of the heirs of the donee, they yet were restrained from alienation as well as the donee himself, a decision which would have made "the will of the donor as expressed in the grant" extend its power for all eternity, if some means of defeating it had not been found. They also defeated some claims on the estate at common law, as resulting in alienations which would prejudice the issue".

The result was that the tenant-in-tail had but slight freedom against the heirs of his body, more against the remainderman, but none against the lord. The owner of land could thus fetter the disposition of his land without any limits as to time, and the means by which the tenant could escape from his fetters were of the scantiest application. The evils of this state of things have been graphically described by Coke and Blackstone*. "Children grew disobedient when they knew they could not be "set aside; farmers were ousted of their leases made by tenants"in-tail, for if such leases had been valid, then under colour of "long leases the issue had been virtually disinherited; creditors "were defrauded of their debts, for if tenant-in-tail could have 'charged his estate with their payment, he could also have "defeated his issue by mortgaging it for as much as it was worth; "innumerable latent entails were produced to deprive purchasers "of the lands they had fairly bought; and treasons were en"couraged, as estates tail were not liable to forfeiture longer

1 Reeves, II. 201.

2 Reeves, 11. 341.

3 Reeves, 11. 200. Vide ante, p. 51.

4 Coke, Mildmay's Case: 6 Rep. 40. Blackstone, 1. 116.

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"than for the tenant's life. So that they were justly branded "as the source of new contentions and mischiefs unknown to the "common law, and almost universally considered as the common "grievance of the realm1.”

For these reasons all classes in the community, except the great landowners, who in the uncertainty of civil wars desired the protection of their estates from forfeiture for treason, pressed for alterations in the Statute". "The same was attempted and endeavoured to be remedied at divers Parliaments, and divers Bills were exhibited accordingly, but they were always on one pretence or other rejected. For the Lords and Commons, knowing that their estates tail were not to be forfeited for felony or treason, as their estates of inheritance were before the Act de Donis...and finding that they were not answerable for the debts and incumbrances of their ancestors, nor did the sales alienations and leases of their ancestors bind them for the lands which were entailed to their ancestors, they always rejected such bills"."

The remedy for this national evil, maintained by that class of the community having power in legislation for their own interests, came from the Law Courts, and is generally associated with the oddly named Taltarum's Case, decided by the judges in 1472. The process by which judicial ingenuity evaded in the interests of the community a statute passed in the interests of a class was that of a Common Recovery, or fictitious suit brought by a plaintiff in collusion against the tenant-in-tail who wished to alienate his land. This process had already been used by the clergy to evade the Statutes of Mortmain; and its use for that purpose had been restrained by special Statute. It was now brought into play for other purposes.

It is not very material to discuss whether Taltarum's Case was the "leading case" to establish the efficacy of common re

1 Bl. 11. 116.

2 Reeves, II. 341. Godbolt's Reports, p. 303.

3 Mildmay's Case. 6 Co. Rep. 40. 4 Y. B. 12 Edw. IV. 19. Digby, R. 1'. 3rd. ed. p. 211. Taltarum is not a

party to the case, but had been the
plaintiff in the common recovery
alleged, so his immortality is an usur-
pation and not of right.
5 V. supra, p. 65.

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coveries to bar estates tail, or whether their virtue for that purpose had been earlier recognized'. Coke says in Mildmay's Cuse that "about 1472 the judges, on consultation had amongst themselves, resolved that an estate tail might be docked and barred by a Common Recovery", while in Mary Portington's Case, he says that this method of barring an Estate Tail was "not newly invented in 1472, but oftentimes affirmed before";" citing a number of black-letter authorities and concluding that "these resolutions and opinions of law produced the judgment in 1472, which was not of any new invention, but proved and approved by the resolution of the sages of the law at all times after the Act De Donis until 1472. And the judges of the law then perceiving what contention and mischiefs had crept into the quiet of the law by these fettered inheritances, on consideration of the said act and of former expositions thereof by the sages of the law gave judgment that in such case the estate tail should be barred."

Taltarum's Case itself does not expressly decide on the validity of a Common Recovery, for while the plaintiff pleads a common recovery suffered by defendant's ancestor, defendant admits it, and sets up a previous estate tail in his ancestor, which alone, he says, was defeated by the common recovery suffered, and the Court agree with him: but it is assumed by both parties and by the Court itself that the Common Recovery in which T. Taltarum is concerned is effectual in barring some estate tail in the ancestor.

The procedure of a Common Recovery was based on the doctrine of Warranty, by which the heirs to an entailed estate were barred by the alienation of their ancestor, if they obtained from him Assets, or lands of equal value to those alienated. This proviso was satisfied if they had a right to lands of equal value, though the right might be valueless. The tenant-in-tail, therefore, who wished to alienate arranged that a fictitious suit should be brought against him for the lands: this he met, not by an assertion of his own title, but by calling upon a person

1 See Pollock, p. 83, note. Reeves, III. 18, where Mr Reeves and Mr Finlason entirely disagree as to the

effect of Taltarum's Case.
26 Rep. 40.
3 10 Rep. 37.

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whom he alleged to have granted to him the lands in question to warrant or defend the grant he had made. The alleged grantor appeared and acknowledged that he was bound to warrant, but then disappeared and failed to warrant. Whereupon the fictitious plaintiff had judgment against the tenant-intail for the lands which he claimed, and the tenant in-tail had judgment over against the fictitious grantor who had so basely failed to defend his grant. This judgment over, or right to recover lands of equal value from the defaulter, served as Assets to the heir of the tenant-in-tail, who was therefore barred. And Lord Coke expressly rests his defence of Common Recoveries on this "intended recompense'," and lays down, "that the judgment given in such case for the tenant-in-tail to have in value. is a bar to the estate tail, although no recompense be had." For of course the heirs never did recover lands of the value they had lost: the defaulting warrantor was a man of straw, who had no lands to lose, and was indeed in later times, when the comedy was in full working order, the Crier of the Court of Common Pleas, who passed the Law Terms in failing to warrant for the consideration of fourpence per failure.

It is hardly necessary to set out in detail the technicalities of the Common Recovery, either at the time of Taltarum's Case, or as ultimately developed by the needs of conveyancing. The proceedings were based on an elaborate series of fictions, and were complicated and expensive in the highest degree; slight slips in them might prove fatal to the title to the land, and it was impossible to find any satisfactory justification for the numerous stages of the procedure, or reasonable explanation of its existence, other than a historical statement of its origin. The Real Property Commissioners in their first Report speak of "the whole mass of technical law relating to common recoveries," as "a mere excrescence on the main body of our laws;" and claim to have shown both their "inaptitude for the purpose for which they (Common Recoveries) have been applied, and the shifts and contrivances to which ingenuity has been obliged to resort in order to render them subservient to those

1 Mildmay's Case, 6 Rep. 40.

2 Mary Portington's Case, 10 Rep.

37.

3

pp. 30, 31.

76

COMMON RECOVERIES

purposes." Previous legal authorities indeed rarely, if ever, even attempted to explain the reason of a Common Recovery, but contented themselves with upholding it. "None ought to be heard," says Coke, "in dispute against the legal pillars of common assurances of lands and inheritances'." In a case which he mentions, "Hoord an utter barrister of counsel with the plaintiff" (who was barred by a Common Recovery) "rashly and with great ill will inveighed against common recoveries, not knowing the reason and foundation of them, who was with great gravity and some sharpness reproved by Sir J. Dyer, C. J., who said he was not worthy to be of the profession of the law, who durst speak against Common Recoveries, which were the sinews of assurances of inheritances and founded upon great reason and authority", but, adds Coke, "non omnis capit hoc verbum." In short, the procedure in Common Recoveries, invented to evade a Statute, complicated from time to time with provisions against all manner of technical difficulties, became an elaborate and technical formality, whose parts had survived their uses, whose elaboration was only productive of expense, and whose technicality abounded in deadly traps for any but the most skilled and careful lawyers. It had degenerated from a fiction which at its best was cumbrous to a juggle which had hardly the merits of solemnity.

Whatever may have been the law before Taltarum's Case, there is no doubt that, after 1472, the way of evading Estates Tail by Common Recoveries was in constant use; and that in consequence the restraints on alienation, and the limited line of succession, imposed by the Statute de Donis, were gone. The class legislation of Parliament was defeated by the national legislation of the judges, at the cost of the introduction into Real Property Law of a fiction which, like Frankenstein's monster, became too powerful for its authors.

as

Another method whereby the strictness of the Statute De Donis was evaded was by the Levying of fines. A Fine was the compromise of a suit, whether fictitious or actual, distinguished from a Common Recovery which was the prosecution of a fictitious suit to judgment. In the time of Glanvil, the suit was genuine: "Contingit autem multototiens loquelas 1 Mary Portington's Case, 10 Rep. 40.

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