Driver Edgar (g), and Benson . Hodson (h), should be closely studied. On the authority and reasoning of the de termination in Symonds v. Cudmore, Ky naston v. Clarke, Shelburne v. Biddulph, it should be understood as a general rule, to be observed in practice, that a tenant in tail, who is merely tenant in tail, or who has the reversion or remainder in fee by descent, should suffer a common recovery, in pres ference to levying a fine; and even if he levies a fine, so as to guard against the acci dent of his death, before the commencement of the term, the fine should be levied for the declared purpose of making a tenant to the writ of entry; and to the intent of suffering a common recovery: so that the fine and common recovery, if one shall be suffered, may form part of the same assurance' (i), and thus prevent, as it is apprehended they will do, the merger of the ownership under the estate-tail, in the reversion or remainder in fee; or, in other words, make the title wholly dependent on the ownership under the estate-tail. And in some cases, especially when there are heavy debts, or there is the apprehension (g) Cowp. 370, (h) 1 Mod. 108, (i) Ferrers and Curson v. Fermor, Cro. Ja. 613, Goodright v. Mead, 3 Burr. 1703. Selwin v. Solwin, 2 Burr. 1131. of judgments, &c. affecting the reversion or remainder in fee, and a fine is to be levied, it will be a caution well worth the expence, previous to levying the fine, to make a demise for years to be created in the name of a trustee, upon trust to attend the inheritance; and to protect the possession during the continuance of the ownership under the estatetail; for the term being supplied partly from the estate-tail, and partly from the remainder or reversion in fee, will not be affected by the subsequent merger, should it take place, of the estate-tail; but would protect the possession during the time of the estate-tail, viz. till the failure of the issue inheritable under the estate-tail. The demise generally used to prevent a forfeiture, in those cases in which it is doubtful whether the party is tenant for life or tenant in tail, and of which there is a form in the appendix, would, with very little alteration, answer this purpose; but it never occurred to the writer of these observations to remark that this caution has ever been adopted in practice.. Observations on the Operation of Fines as distinguished from Recoveries. To elucidate the remarks on the extensive, operation of recoveries, as distinguished from fines, and to shew the application of these remarks to practice, a few general observations may be added in this place. It is quite clear that a tenant in tail, merely as such, cannot make a good title to the feesimple, without suffering a common recovery. A fine levied by him, and operating as a conveyance, will merely bar the estate-tail, and convert the same into a base or determinable fee (k), or, if it operates by discontinuance, then a fee-simple will be gained: but such fee-simple may be avoided by the action of those in reversion or remainder; or they may be even remitted to their estate by operation of law: but when a person who has an estate-tail, with an immediate reversion in fee, levies a fine with proclamations, the effect of the fine will be to bar the estate-tail, and convert the same into a determinable fee, and this determinable fee will merge in (k) Machell v. Clarke, 2 Lord Raym. 778. Doe v. Whitehead, 3 Burr. 704. Doe v. Wichelo, 8 Term Rep. 211. the fee-simple. The consequences are, 1st, that the title depends partly under the ownership of the estate-tail, and partly under the ownership of the reversion in fee; 2dly, the reversion, having become an estate in possession, the possession is immediately chargeable with all incumbrances which af fected the reversion or remainder in fee. For this reason it is considered a rule of practice, by all sound lawyers, that a tenant in tail with reversion or remainder in fee by descent, should suffer a common recovery instead of levying a fine. And it certainly is the interest of every seller who has a title thus circumstanced, to suffer a common recovery, rather than rely on the operation of a fine. It is also the interest of the purchaser, that a common recovery should be suffered, so that the evidence of the title may depend wholly on the ownership under the estate-tail, instead of being deduced, as it otherwise must be, as well under the ownership of the reversion in fee, as of the estate-tail. It is, however, now settled by the case of Sperling v. Trevor (1), that a title derived by means of a fine levied by tenant in tail, with the reversion in fee by descent, is, prima facie, good; and a purchaser cannot object to it, for want of a common recovery; unless he can shew that (1) 7 Ves. p. 497. *** the reversion in fee has been aliened or incumbered. However, though this shall not be shewn, he has a clear right to have a recovery suffered at his own expence. He has also a right, unless a recovery shall be suffered, to have the title deduced from each successive owner, who for the time being has been seised of the reversion in fee; and for this purpose to call for an abstract of the wills of such of them as have left wills affecting real estates, and for presumptive evil dence of the intestacy (as letters of administration or the like) of such of them as are alleged to have died intestate; and to satisfy a purchaser on these points will frequently be attended with more delay, and in general with more expence than a common recovery; and for this reason, independent of the advantages which, in reference to the covenants warranting the title, arise to the seller from a recovery, it seldom, indeed very rarely among gentlemen of any experience, happens that a seller is advised to refuse a recovery, and place the title on the operation of a fine; and in many cases, and indeed in all cases of considerable property, a recovery is attended with less expence than a fine. |