CHAPTER V. assurances, and among these, by a tenant in tail an effect beyond that of passing an ture strength ens the opera tion of a fine. 4. To a FINE, as a common law assurance, and after- 4. The legisla wards as regulated by a particular statute (g), which prescribed certain ceremonies called proclamations, belonged especial virtue in barring, speedily and conclusively, the rights of adverse claimants. At a later period, the legislature (h), emulating the free spirit of the common law, which its former policy had controlled, imparted expressly to the fine of a tenant in tail, when the ceremonies already prescribed were observed, the effect of absolutely excluding the issue in tail, as such, from the succession, and of thus diverting the land, for the time of the continuance of such issue, into the ordinary channels of descent and alienation. As the fine did not, like the recovery, require the concurrence of the immediate freeholder, its statutory force enabled remainder-men in tail (and, indeed, contingently (i), heirs expectant in tail) to alien alone as against the issue. The modes, therefore, of barring an entail, as it was termed, were now two, namely, by recovery at the (f) Vide post, 3 & 4 Will. 4, c. 27, s. 36. (g) 4 Hen. 7, c. 24. (h) 32 Hen. 8, c. 36. General result modes of alien as to the various CHAPTER V. ing an entail ed estate, and their relative force. 5. Anomalous effect of a sta ating a base fee on which a remainder might be limited; common law, which gained the clear fee, and by fine, according to the statute law, which gave a fee measured by the duration of the issue on whom the estate tail would, if unbarred, have devolved. Concurrently with these devices, there remained the common law methods of disturbing, without barring the estate tail and remainders; so that the fine of a tenant in tail in possession was capable at once of conferring, under the statute law, a perfect title as against the issue, and, at the common law, an imperfect title as against the remainder-man and reversioner; and as, when the fine thus disturbed (or, technically speaking, discontinued) the possession, the statute of fines (h) materially shortened the time otherwise allowed to those in remainder and reversion for the assertion of their rights, it may be supposed that the properties of this assurance were little calculated to simplify titles. Indeed, the complication arising from such a state of the law was extreme. 5. As, under the statute de donis, an estate tail betute fine, in cre- came a particular estate, so, under the statutes which made the fine an absolute bar to the issue in tail, a base or determinable fee, derived out of the estate tail, became also a particular estate; and thus the common law, which prohibited a remainder after a fee, was again -how correct infringed. But the tendency of a remainder after a base fee to a perpetuity was corrected, by holding that, as well the tenant in tail who levied the fine, as the issue in tail, though barred themselves, retained the power of barring those in remainder and reversion by a recovery, suffered, of course, with the concurrence of the owner of the freehold. ed. Confusion aris ing from this Such, then, was the progress of the law of entails. Each state of the law. step subsequent to the statute de donis was an effort to (k) 4 Hen. 7, c. 24. CHAPTER V. 6. The recovery of a tenant in of executory springing uses. devises and recover the liberty of alienation, but by pursuing that object without method, by employing different devices, with various kinds and degrees of operation, the law became entangled among subtleties and forms hardly less injurious than the perpetuity which it abhorred. The wrong assurance was adopted, or the technical requisites were not duly observed, and the effect upon the title of the blunder or omission was often overlooked or misconceived. 6. We have hitherto adverted only to the barring of estates tail, and of estates in remainder or reversion after estates tail. These had a direct tendency to withdraw land from alienation for an indefinite period, and were struck at as obvious evils. In the same spirit, but with a less distinct perception of the mischief, after the introduction of springing uses and executory devises, and while the limits of those new and eccentric modifications of property were yet undefined, the recovery of a tenant in tail was adjudged a bar to whatever dispositions were calculated to defeat or abridge the estate tail; and lest perpetuity should creep in through the loophole of an exception, all modes and forms of limitation, having such a restrictive tendency, were indiscriminately involved in the sweeping operation of that assurance. Thus, for example, when land was limited, by way of use or of devise, to A. in tail, but if B. should return from Rome, then to B. in fee, or to A. in tail, with power for B. to revoke the estate of A. and appoint to C., the recovery of A. gained the absolute fee (1). This strong Whether this operation seems to have been attributed to the recovery inadvertently of a tenant in tail, either from mere inadvertence, or, more probably, from a vague impression that to modify his power would be to introduce a perpetuity, respecting which opinions were, up to a very recent period, much (1) Post, Vol. 2, note to Prec. No. 32. power was not conceded to the tenant in tail. CHAPTER V. afloat, if indeed the doctrine can yet be considered as perfectly fixed (m). Such executory limitations, when confined, as in the preceding examples, within the limit of a life or lives in being, had no greater tendency to a perpetuity than remainders after an immediate estate for life, and were, indeed, if limited to take effect in defeasance or abridgement of the fee, allowed to be valid and indestructible; so that if land was limited by way of use, or devised, to A. in fee, and in case B. should return from Rome, then to B. in fee, or to A. in fee, with power to B. to revoke the estate of A. and appoint to C., the first taker (A.) could not, by any means whatever, acquire the absolute fee. There was apparently no ground for arming the tenant in tail with that power which was denied to the tenant in fee. Whether the reason be sought in the strong technical operation of the recovery, or in the desire of promoting alienation, the argument will tell with equal force for either species of owner. If the bar had been confined to the issue, remainder-men, and reversioner, leaving executory limitations to be controlled by the rule against perpetuities, their natural and inflexible barrier, the law of settlement would have been more just, certain, and consistent, and we should then have escaped the difficulty of finding any satisfactory principle (n) on which we may rest the solution of the question whether a given executory limitation does or does not lie at the mercy of the tenant in tail. Then, while estates in remainder or reversion after an estate tail would have been barrable, limitations by way of Suggestion for placing the law, In this respect, on a sounder and simpler basis. (m) Post, Illustrations, IV. (n) Post, Vol. 2, note to Prec. No. 32; see 2 Sugd. V. & P. 10th ed. 276-"where a power is really antecedent to an estate tail," &c. This very point, the reality of the precedence, is the insoluble problem. See Case v. Drosier, 3 Jurist, 1134. use or of devise, tending to defeat the estate tail, would, unless confined within the limits prescribed by the rule against perpetuities, have been void in their creation; though such limitations, if so confined, and therefore valid, would neither have interfered with, nor have been disturbed by the act of enlarging the estate tail into a fee, but would have continued to over-ride the fee, howsoever modified (o). The courts, in their desire to promote the free interchange of property, somewhat overstepping the reason and policy of the law, or rather, perhaps, adjudicating under an obscure apprehension of mischiefs from springing uses and executory devises, untaught as yet to acknowledge any law more definite than reasonable limits (p), hastened to invest the tenant in tail for the time being with the complete dominion over the inheritance, as against all claimants to the prejudice of his estate tail; jealously watching and frustrating every attempt to restrict that dominion by means of limitations, conditions, or other devices, whether the fetter would be more or less durable-whether the power of absolute alienation would revive within a short period or be suspended on remote contingencies. To a tenant in tail, the capacity of enlarging his estate, however circumscribed or defeasible, into a fee-simple absolute, was peculiar, and from him it was inseparable. Having taken this general view of the history of entails, and of conveyancing as it relates to entails, we proceed to enter upon a more particular, though not a detailed examination of the two assurances directed especially against such protected inheritances. If the Fines and Recoveries Act were taken up in ignorance of the rise (0) Ib. (p) See Cadell v. Palmer, 7 Bligh's Parl. Rep. N. S. 229; CHAPTER V. The large dounnecessarily tenant in tail. minion thus conferred on the Of the assur ances peculiar to the old law of settlement. |