[Christian name] his wife, of the first part, and [relessee to uses], of &c., of the other part. WHEREAS, by indentures of RECITALS lease and release, bearing date respectively the in the 2 year day of and days of -of settlement on marriage of father and mo ther of tenant in tail, limiting the lands; to the father for life; -to trustees to preserve, &c. to the intent might receive a jointure rentcharge; that mother this is little regarded in practice, and the trustees cannot be called upon to convey it till the remainders have been barred. (155) Where the object of the conveyance is to vest the fee in a third person, a bargain and sale may be substituted for a lease and release. But the conveyance by bargain and sale cannot revest the estate in the bargainor, nor give effect to the common uses to prevent dower in favour of the bargainee, so far at least as regards the power of appointment. (Vide ante, n. (64)). A purchaser, indifferent as to the power of appointment, and not having a wife to whom he was married on or before the 1st of January, 1834, may take a simple conveyance in fee by bargain and sale, with a declaration, under the Dower Act, 3 & 4 Will. 4, c. 105, s. 6, for excluding dower. The declaration may immediately follow the habendum and be in this short form:-" And the said [purchaser] hereby declares that his widow shall not be entitled to dower out of the said hereditaments and premises hereby bargained and sold." But, for some years to come, in order to render the fact of marriage on or before the 1st of January, 1834, immaterial to the future title, it will be better also to insert the ordinary uses to prevent dower. Besides, the power of appointment still has its use. On this subject, vide ante, Vol. 1, Chap. v. Conveyance by Form of declaration to ex clude dower. -to trustees for 500 years, for securing jointure, and raising portions; der to the use of the said [trustees of term], their executors, administrators, and assigns, for the term of 500 years, to be computed from the day of the date of the now reciting indenture of release, without impeachment of waste, upon the trusts therein declared for securing the said jointure rent-charge, and also for raising certain gross and annual sums of money for the portions and maintenance of the younger children of the said then intended marriage; and from and after the determination of the said term of 500 years, and in the meantime subject thereto and to the trusts thereof, to the use of the first and other sons and every other son successively of the said then intended marriage, in remainder one after another, in tail male, with reversion to the use of the said [father], his heirs and assigns for ever; AND WHEREAS the said [father] died on the -to the first of the marriage in tail male; -to father in fee; -of death of tenant for life; -of state of family; day of in the year, leaving the said [mother], his widow, who is still living; AND WHEREAS there was issue of the said marriage [two] sons, namely, the said [tenant in tail], who is the first son of the said marriage, and [younger son], also [two] daughters, namely [daughters]; AND WHEREAS the said [tenant in tail attained in tail] attained the age of twenty-one years on the -that tenant twenty-one. TESTATUM. Objects of as surance. Efficacy of a recovery, how far communicated to the substitute assurance. day of last. Now THIS INDENTURE WITNESSETH, that, in order to defeat the estate tail of the said [tenant in tail], by virtue of the said recited indentures, in the manors, messuages, lands, and hereditaments hereinafter described or referred to, and all estates, rights, interests, and powers to take effect after the determination or in defeasance (156) of such estate tail, and in (156) A common recovery suffered by tenant in tail acquired the fee, discharged, not merely from remainders and reversions, strictly such, but also from executory limitations,-a comprehensive class, embracing all those multifarious destinations which refuse obedience to the rules of the common law, (vide ante, n. (47)), and which were, of course, unknown at the period when a common recovery was first applied to the barring of entails; yet by a liberal construction of the judicature, proceeding on reasons of policy rather than principles of law, the recovery barred or extinguished them. The operation of an assurance under the Fines and Recoveries Acts, (the consent of the protector, if any, being obtained), is, in these respects, equally searching and potent. But a distinction was taken between executory limitations precedent, and executory limitations subsequent to the estate of the tenant in tail; whose recovery was deemed a bar to the latter, but not to the former. (Roper v. Hallifax, 8 Taunt. 845; see 1 Sand. Us. 4th ed. 176; 3 Ad. & Ell. 42). And, as executory limitations subsequent to the estate tail were thus barrable, they were held good, order to extinguish the title of the said [Christian name], the Effect of a recovery, and of its substitute, upon executory limitations. nant in tail. although not expressly circumscribed within the period of a life or lives in being and twenty-one years. (Nicolls v. Sheffield, 2 Bro. C. C. 215; 2 Sugd. Pow. 494, 497; 1 Jarm. Dev. 408, n.; Hayes's Conc. Conv. 243, n.; ante, Vol. 1, Chap. v., Illustrations, IV.). The words of the above acts, "estates to take effect after the determination, or in defeasance of the estate tail," which have been adopted in the text, must, therefore, be qualified in construction, as they would otherwise comprehend every limitation capable of divesting, abridging, or charging the estate tail. Thus, if land be limited to the use of A. for 99 years, if he shall so long live, with power of jointuring, remainder to B. in tail; the estate tail is vested, (though not vested in possession, see 3 Ad. & Ell. 42), subject to be partially divested by an execution of the power; and the power, so considered, is limited in "defeasance of the estate tail;" but the recovery of B. would not have barred the power, which, for the purpose in question, would have been treated as precedent to the estate tail; nor will the substituted assurance of the tenant in tail bar a power so circumstanced, for the operation of that assurance on executory limitations must, it is presumed, be measured by the old standard of the common recovery. In determining the effect of a reco- What execuvery, or of its substitute, upon executory limitations, which have really tory limitations no relation to the estate tail, except as that estate constitutes part of the barrable by tefee from which they are to spring, (ante, n. (22), (47), (61)), difficulties exist which may render it necessary for the judicature, at no very distant period, to review the whole doctrine on first principles, in order to reduce it within some definite rules. Suppose the simple case of a limitation to such uses as A. shall appoint, and in default of appointment, to the use of B. in tail; or of a will empowering executors to sell for payment of debts, and devising the land to B. in tail; can B., it is asked, (3 Ad. & Ell. 941), bar the power? And, if B. cannot bar the power in such a case, yet, where the limitation is to B. in tail, with power for A. to revoke the estate tail, and to appoint new uses, or with a proviso that if A. shall return from Rome, the land shall be to the use of C. in fee, B. can bar the dower or the proviso, (see 2 Sugd. Pow. 563), on what principle does the distinction stand? If the power, in the former examples, he considered as "springing from a point anterior to the commencement of the estate tail," (3 Ad. & Ell. 19), and, in the latter examples, from a point subsequent to its commencement, what is the true criterion of priority and posteriority in regard to such limitations? The cases furnish none; and first principles apparently militate against the existence of the supposed distinction. It has Whether the already been suggested, (ante, Vol. 1, Chap. v.), that the courts erred, in holding that the recovery of a tenant in tail acquired the fee discharged in any case from an executory limitation; sound principle seeming to have required that, as the fee was originally impressed with the executory limitation, so the fee gained by the recovery should be defeasible, as before, by that limitation, or, in other words, that the estate tail should be enlarged into a fee, only as against those claiming in remainder or reversion regularly expectant or dependent, according to the course of the common law, upon effect of a re covery was properly extended to executory limitations. The late case of Doe v. Earl wife of the said [tenant in tail], to dower (157) out of the said the estate tail. This assumes, of course, that the executory limitation does not transgress the rule against perpetuities; otherwise, it must be (as, indeed, in whatever point of view considered, such a limitation ought to have been, see Eldon's judgment in Ware v. Polhill, 11 Ves. 257) adjudged void from the beginning. The effect of a recovery upon executory limitations was much discussed in the recent case of Doe d. Saville v. The of Scarborough. Earl of Scarborough, (3 Ad. & Ell. 2; 4 Nev. & Man. 724), where lands were limited to A. for life, remainder to A.'s first and other sons in tail, remainders over; with a proviso, that if the earldom of S. should descend upon A. or any of his sons, within a definite period, which was not too remote, his or their estate should cease, and the lands remain over, as if he or they were dead without issue. A. and his eldest son conveyed to a tenant to the præcipe in a recovery which was suffered by the son. The earldom afterwards came to A. The Court of B. R. held, that the proviso was an executory limitation, precedent to the estate tail of the son, and, therefore, not barred by the recovery. But this decision has been reversed in the Exchequer Chamber, (Earl of Scarborough v. Doe, 3 Ad. & Ell. 897), both judgments being unanimous; but the reversal proceeded on the ground that the proviso was merely a proviso of cesser, which operated by simply striking out the estate, and accelerating the remainders already created, and not by introducing any new estate, (a point distinctly presented to the court below in Mr. Preston's argument); whereas the court below thought that a new estate arose on the descent of the title, and that there was no inconsistency in considering the remainderman as having a vested estate, and also a possibility of a similar, though not the same estate; by which construction, as was observed in the judgment of reversal, each person in remainder would have had, not two interests only, namely, the remainder in tail originally limited, and one possibility created by the proviso, but the remainder in tail and an indefinite number of possibilities, according to the number of devolutions of title which might take place between the testator's death and the expiration of the period assigned to the proviso. (3 Ad. & Ell. 969). The stat. 3 & 4 Will. 4, c. 74, s. 15, having been referred to in the argument below, the court above, in giving judgment, observed, that the statute is expressed in general terms, and proves only, what in reality was not disputed as a general proposition, viz. that a recovery would not affect estates prior to the estate tail of which it was suffered. The reversal appears to rest on a simple and solid foundation; but the result of the discussion leaves wholly undetermined the limits and reasons of the operation of a disentailing assurance as regard executory limitations. (See Case v. Drosier, 3 Jur. 1164). The clause enabling married (157) It may, perhaps, be thought that the act of 3 & 4 Will. 4, c. 74, s. 77, should have expressly mentioned dower. But the express menwomen to alien, tion of any particular species of interest would not only have been a departure from the principle on which the act is framed, and properly framed, that of employing terms at once definite and comprehensive -but have engendered doubts as to other species of interest not ex by deed acknowledged, extends to dower. sion clause. manors, messuages, lands, and hereditaments, and to limit the inheritance in fee-simple thereof to the uses and in manner hereinafter expressed, The said [tenant in tail], and [Christian Tenant in tail name] his wife, Have and each of them Hath granted and conveys. released, and by these presents Do and each of them Doth grant and release unto the said [relessee] and his heirs, (in the actual possession of the said [relessee] now being by virtue of a Actual possesbargain and sale thereof made to him by the said [tenant in tail], in consideration of 58., by indenture bearing date the day next before the day of the date of these presents, for one year computed from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute for transferring uses into possession), All [parcels], And also Parcels. all other the manors, messuages, lands, and hereditaments of which the said [tenant in tail] is tenant in tail by virtue of the said recited indentures; Together with all the rights, members, and appurtenances to the said hereditaments and premises belonging or appertaining; And all the estate, right, title, All deeds, &c. pressly mentioned. There was no more reason for particularising dower, as one species of interest which a married woman might release, than for particularising a power simply collateral as one species of limitation which a tenant in tail might bar. There cannot be a reasonable doubt that the section above referred to, taken in connexion with the definition of the word "estate," (s. 1), or even unaided by that definition, includes dower. The question, therefore, if there be a question, must hinge upon the Dower Act, 3 & 4 Will. 4, c. 105. But that act, which, after admitting the wife, on the one hand, to dower out of estates not before subject to dower, and enabling the husband, on the other hand, to exclude dower by his alienation or declaration, simply provides, (s. 14), "that this act shall not extend to the dower of any widow married on or before the 1st of January, 1834," and has, therefore, left the above enabling section of the act of 3 & 4 Will. 4, c. 74, in regard to alienation by married women, wholly untouched. The argument which seeks to prove that a title to dower, attaching on or before the 1st of January, 1834, can neither be extinguished by the husband and wife under the Fines and Recoveries Act, nor defeated by the husband under the Dower Act, amounts to this: that, if the Fines and Recoveries Act extended to dower, yet, the Dower Act, when it enabled the husband alone to exclude the dower of a wife taken after the 1st of January, 1834, necessarily abrogated the power conferred upon the wife, in conjunction with the husband, by the Fines and Recoveries Act, of releasing her title to dower; and that, as well in regard to women whose rights are expressly within the Dower Act, as in regard to women whose rights are expressly excepted out of it. |