original share according to the higher denomination, and adding one as the estate of each donee determines.

The utility of considering and defining remainders of this description may be easily proved; since, from the nature of cross remainders, practical conclusions, of very material consequence, are to be drawn. The opinion to be formed on the power of alienation, and also on the operation of an assurance, will frequently depend on a perfect solution, and consequently, knowledge of the nature of these remainders. Under cross remainders, each person has an estate extending in different lines, and with dif ferent degrees of right to the possession, to every part of the lands which are the subject of these remainders; consequently, he has a power of alienation, over every part of the land, according to the nature of his estate, and the extent and relative degree of his ownership, in each par: ticular part.

In each part he has only one estate, and that estate is either in possession or remainder; and as to his estates in remainder, he has a remainder in a more immediate, or more remote, degree, according to the order and place in which that estate stands in the table of cross remainders. He has not two estates in any one part of the land. It follows, that whether he levies a fine or makes a conveyance of the entirety of the land, that fine or conveyance will extend to his estate in each particular part; and it also follows,

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that the estate of every tenant in possession, holding under a limitation with subsisting cross remainders, is succeeded by a remainder or remainders over in favour of other persons.

A consequence flowing from these deductions is, that a tenant in tail with cross remainders cannot of himself, without the concurrence of those in remainder, make a good title to the particular part of which he has the freehold in possession, by any other means than suffering a common recovery of that part.

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A fine, feoffment, or other like conveyance of that particular part of the lands, would pass a fee, determinable on the failure of the issue inheritable under the intail. It would not alien the estate of the persons in remainder. overreach and bar their estate in this part, and exclude their title, a common recovery is absolutely necessary. This is a point deserving attention in practice.

To simplify the case as much as possible, and to show the application of these observations, let it be supposed that A and B are tenants in tail, with cross remainders between them, and that one of these persons wishes to sell or acquire the fee-simple of his moiety. To do this effectually, he, acting alone, must suffer a recovery. That assurance would bar the remainder existing in his moiety; but a fine, or conveyance by feoffment, lease and release, &c. would merely pass the time of his own estate; and, after his death, and failure of issue, the person

entitled to this moiety, under the limitation of cross remainders, might by entry (unless the remainder was discontinued, and, if discontinued, then by action) recover this moiety. In this particular, the difference between cross remainders, and a limitation to two persons as tenants in tail, with remainder or reversion to them in fee, is deserving of attention. In the former case, each person has one estate in different parts, and a power of alienation over each of these parts, according to the order, nature and situation of his estate in that part. In the other case, each person has two estates in the same identical part, and no estate whatever in the other part; and for this and for this reason, no power of alien

ation over that part (b).

A consequence, however, of his having several estates in the same part, is, that a fine levied of his moiety, if with proclamations, will complete the title to the fee-simple of that moiety; because the fine will take from the estate-tail the privilege of the issue under the statute de donis; and then the time of the estate-tail in this moiety will merge in the reversion or remainder in fee of the same moiety. But, as will afterwards be noticed, a fine is even in this case an ineligible, and sometimes an improper, assurance, since it may accelerate charges on the reversion, and subject the owner to incumbrances, which he might have avoided by suffering a common recovery (c).

(b) Church v. Edwards, 2 Bro. C. C. 180; 3 Convey. 91. (c) 1 Convey. 54.

These observations may be illustrated, and their application rendered more obvious, by apposite examples.

Assume then the facts, that A, B and C are tenants in tail, with cross remainders in tail between them, with reversion in fee to them: a fine by them jointly of all the land would effectually extinguish their several estates-tail in possession and remainder, and pass the ownership under the estates-tail and the reversion in fee; for as the fine of each person extends over all the land, it will bar his estate in every part. By these means, cæteris paribus, a good title would be made to the entirety of the lands in fee-simple.

So if each of them, separately, levied a fine of the entirety of the land to the same person, that fine would complete the title; because each person would give his estate-tail in possession in a third part, and also his estates-tail in the first and second line of remainders of the other two third parts, and also his reversion in fee in his original third part: but admit that each tenant in tail should levy a fine of the entirety to a distinct person; that fine would operate on the

estate-tail and reversion of the conusor of the fine in his particular share; but it would not bar, exclude, or defeat the two lines of remainders in that share; and consequently, after a failure of issue of the conusor in any one of the fines, the others, or their issue or alienee, entitled under the cross remainders, might by their entry, if there was not any discontinuance (and, in case

of a discontinuance, by their action), recover this share of the lands, and would become tenants in tail of the same share; and if each should levy a fine, or suffer a recovery of the original and particular share of which he is tenant in tail in possession, he would not even exclude himself or his issue from the estates in the other parts which he has by way of remainder.

From the same principles it follows, that if two of these three tenants in tail should suffer a common recovery of their two third parts, and the other tenant should levy a fine of his third part, the title would be open to the objection that those donees who suffered the recovery still had a remainder in the share of the person who levied the fine; because that fine does not operate with effect, to bar these remainders. It also follows, that the recoveries being a bar of all remainders in the two third parts of which they are suffered, the third tenant in tail and his issue have not any existing title in these two parts.

Suppose one of several tenants in tail, with cross remainders, to be desirous of selling his estate throughout the different parts of the lands; and let it be considered what is the proper mode of assurance for transferring these

estates.

Of that part of which he is tenant in tail in possession he may suffer a common recovery; and that recovery will be effectual to bar all the