ration on the title was, whether the equitable tenant in tail, by being vouched, and by having procured the surrender to be made by his trustee, without having been party to the surrender, had given a right to the equitable estate of freehold to the intended tenant in the recovery. The title thus circumstanced was considered too doubtful to be accepted, but, individually, the gentlemen who considered this case thought there were strong grounds for supporting the recovery.

The like point arises, when a cestui que trust conveys his estate to one person for life in trust for another, as for the separate use of a married woman, with remainders over in tail: even in this case conveyancers do not feel that confidence on which they can implicitly rely. Some contend that the trustee has the equitable freehold; while others maintain the opinion that the person who has the beneficial interest is solely the equitable owner, and that this person alone may make a good tenant, to the writ of entry, for suf-[ 28 ] fering a common recovery. This seems to be the better opinion, for the supposed trustee has no estate at law, and it should seem that even in equity he has no more than an office, and not any interest, which can render his concurrence in a common assurance, like a recovery in any wise necessary.

The cases in the note (p. 22.) will also

show, that in some cases an attempt has been made to invalidate equitable recoveries, on the ground of an adverse possession, corresponding in effect with a disseisin of a legal estate. The cases on this point should be considered from the reports of the cases themselves.

It is also observable, that a recovery suffered by a person who has the legal estate in fee, subject to an equitable intail in himself, may bar (k) this equitable estate-tail, and all ulterior interests.

And, once for all, it may be observed, that there is not any occasion on which it is more important that a full abstract of the title should be laid before the conveyancer for his advice, than when preparing a recovery deed. It has happened more than once, that six recoveries have been suffered to bar the same estate-tail, and that five of them have been defective, for want of a good tenant to the writ of entry; and the sixth recovery, though good according to the better opinion, involved the question, whether a recovery defective, as against the issue in tail, and those in remainder and reversion, for want of a good tenant to the writ of entry, is good as between the parties, so as to pass the estate by way of estoppel or conveyance, and supply a seisin to serve the uses declared thereof.

(k) Marwood v. Turner, 3 P. W. 163.

29

ON THE PARTIES TO A RECOVERY.

THE PARTIES TO A RECOVERY ARE

I. The Demandant.

II. The Tenant.

III. The Vouchees.

I. Of the Demandant.

THE demandant is merely a formal party, for the purpose of supporting the character of plaintiff in the action on which the recovery is founded. It is of little consequence who is named demandant. Generally only one person is named. Sometimes two persons are named. Respecting the demandant, it is merely necessary that he should be alive when judgment is given on the recovery. In case he dies pending the proceeding, another demandant must be named, and the proceeding commenced de novo; but if the recovery deed be actually prepared and executed, there will not be any

[ 30 ]occasion for another recovery deed. A precedent of a deed prepared on occasion of the death of a demandant will be found in the Appendix, p. 466. The deed was in that case prepared to meet the wishes of the parties, rather than from any conviction that it was necessary.

II. Of the Tenant.

THE tenant is the person in whom the freehold resides, and against whom the lands are to be demanded by the plaintiff, in real actions called the demandant. By the freehold must be understood the immediate freehold (a).

For convenience, some gentleman residing near to, and personally attending the court in which the recovery is to be suffered, should be named the tenant. This practice will save the expense of a dedimus to take his warrant of attorney, an expense which otherwise will be necessary (6). Sometimes two persons are named tenants. This is done to guard against the death of one tenant before the recovery is suffered. This caution can rarely be necessary in the common and ordinary practice of suffering the recovery in the first instance, and executing

(a) Essay on Est. chap. Free- (b) Pig. on Recoveries, 26.

hold.

the deed, making a tenant to the recovery at a subsequent period. When two persons are named tenants, and both are alive at [ 31 ] the time when the recovery is suffered, both these persons must be named as tenants in the proceedings for suffering the recovery. Should only one of these persons (as has sometimes happened) be named, the recovery will be defective for the moiety or other share of the person not named in the proceedings for, as to his share, the recovery will be suffered without a good tenant to the writ of entry. So, when two persons are joint-tenants, and the recovery is suffered on a writ brought against one of them, the recovery will be defective for a moiety (c).

It is not absolutely necessary that there should be a conveyance, for the for the purpose of making a tenant to the writ of entry. The writ may be brought against the person in whom the freehold is vested. A recovery

suffered in this mode will be good, so far as the existence of a good tenant to the writ of entry is material. In some cases, it has been advised that the writ should be brought against the tenant: thus, where lands were. given to one in tail, with a conditional limitation over in the event of his alienation,

(c) Marquis of Winchester's Case, 3 Co. 1.