formance, and will in equity affect the legal interest of all those who take the estate with notice of them. That all those claiming under the settlement of 1697, had notice of these leases and covenants, and were as much bound by an equitable lien upon the lands, as Earl Henry himself; especially in favor of lessees who had made very great improvements, and were therefore to be considered as purchasers of the right of renewal.

After hearing counsel on this appeal, the following question was put to the judges; viz. whether by the fine levied by the appellant, Earl of Shelburne, in Easter Term, 1697, the reversion in fee of the estate in question was let in, subject to the leases in question made by Charles Lord Shelburne, and the covenants therein contained for a perpetual renewal ? And the Lord Chief Justice of the King's Bench, having delivered the unanimous opinion of the judges to this effect, viz. that the leases for lives then in being were good and effectual, as being served out of the reversion in fee which Lord Charles had when he made them, and which was then in Lord Henry; and that the covenants for renewal were binding on Lord Henry, as a lien on the same reversion, which he had let in by barring, discharging, and extinguishing his estate-tail: it was ordered and adjudged, that the appeal should be dismissed, and the decree therein complained of affirmed.

A point existed in this case which seems

to have escaped notice.

When the estate

tail of Lord Charles determined, the leases were determined as against the remainderman, as owner of the remainder, and subsisted only as against him, as the owner of the reversion in fee. The estates granted by the leases, therefore, were mesne estates between the estate-tail of Earl Henry and his reversion in fee, and this interposed estate did in point of law keep the estate-tail, of Earl Henry, and the determinable fee derived from his fine distinct from the reversion in fee, and ought on principle to have been considered as a protection against merger, and consequently to have suspended the operation of the leases, and of the covenant for renewal, until the estate-tail of Earl Henry was spent, and to have left him at liberty to have suffered a recovery, to enlarge his estate-tail into a fee-simple, and bar the reversion in fee, and the leases and covenants for renewal as depending on the reversion.

The suit, however, was only for the performance of the covenant for renewal. That covenant was treated as attaching on. the inheritance as if accelerated by merger; without regarding the intervening terms of years which prevented the merger so that the title under the leases might, for the purposes of enjoyment, have been suspended while the title under the renewals was in operation.

And in Kinaston v. Clarke, (a)· "Thomas "Delahay on his marriage settled his estate "on himself for life, on his wife for life, re"mainder to trustees to preserve contingent "remainders, remainder to his first and every "other son in tail male, remainder to himself "in fee; and there were issue a son. Thomas "the father died indebted by bond, the son "died afterwards without issue, but by his "will had devised the estate to the defend"ant Clark in fee."

And Lord Hardwicke, after treating the reversion in fee, as chargeable with the debts. by specialty, observed, "indeed the son

might have suffered a recovery, and bar"red the reversion in fee, and then the fa"ther's creditors would not have come in; if " he had levied a fine only, it would have "barred the estate-tail, but the reversion "in fee would have been liable."

The cited cases (b) fully establish the position that an estate-tail when it no longer retains the quality of being descendible to the issue, may merge. (c) But it can merge in those cases only in which the fee arising from the estate-tail, and the fee immediately expectant on that estate, meet in the same person. By suffering a common recovery, the tenant in tail may enlarge his

(a) 2 Atk. 206.

(b) See Perk. 88.

(c) Walsingham's Case, Plow. Com. p. 547. on the principal point: this case is not law at this day.

estate-tail into a fee-simple, and destroy all remainders expectant on the estate-tail, and even the remainder or reversion in fee, if any, in himself. The operation of a fine is not equally extensive. Its effect, when it does not cause a discontinuance, (and tenant in tail who has not the immediate remainder or reversion cannot create a discontinuance,) is confined to the estate-tail: when levied by tenant in tail without effecting a discontinuance, it may be a conveyance of the fee; but it cannot destroy the reversion or remainder: on the contrary, when an estate-tail, and the remainder in fee, immediately expectant on that estate, are both in the same person, the effect of the fine is to take from the estatetail, the quality of descending to the issue, and the time comprised in the estate-tail is annihilated in the time of the remainder or reversion in fee; and the right of possession under the remainder or reversion in fee is accelerated, and the estate-tail, and the time of that estate, become extinguished. Under these circumstances, the estate in reversion or remainder gives the right of more immediate possession. All persons who have any claims on that reversion or remainder, as a distinct interest from the estatetail, will gain the advantage of this acceleration of the estate, to the prejudice of the tenant in tail. This is obvious from the decision in Shelburne and Biddulph.

Tenants in tail frequently involve them

selves in the consequence of merger, by levying a fine instead of suffering a common recovery. It may be stated, as a point of prudence never to be disregarded, that no tenant in tail who has the fee by descent, from his father or other ancestor, should ever levy a fine. By attempting to avoid the difference of expence, and which is inconsiderable, he may involve himself in all the incumbrances of his ancestor. He also renders the deduction, and the evidence of his title, more difficult. A purchaser or a mortgagee must be satisfied that he had a good title to the fee as well as to the estatetail; and an inquiry must be made into the acts done by the ancestor, and the incumbrances which affect the reversion or remainder. A recovery suffered by the tenant in tail supersedes the necessity of considering the title to the reversion or remainder. For the reversion or remainder being barred by the operation of the recovery, the acts done by the different owners of this estate are immaterial to the title; they cammot affect the lands in the hands of the tenant in tail, or the alienee under the intail. His recovery has over-reached the right of the reversioner, and remainder-men, including himself if he be a reversioner or remainder-man, and entirely defeated their estates. On the title therefore of the tenant in tail to the estate-tail, will depend the future title to the fee-simple, because the estate-tail which was in him, has