CHAPTER V. Effect of assur ances by tenant old law, and un- mainder to B. in fee, the assurance of B. (without the concurrence of A. (s. 34)) would confer a perfect title to the fee-simple immediately expectant on the tenancy for life, by the expansion of the estate tail; but if the land were limited to A. for life, remainder to B. in tail, remainder to C. in tail, remainder to B. in fee, the assurance of B., unless made with the consent of A., the protector (s. 34), would operate, under the act, to confer a title to only a fee determinable on the failure of issue in tail of B., and, independently of the act, to pass the ultimate remainder in fee; although, if C. should afterwards die without issue, and the base fee and the remainder in fee should centre in the same person, the base fee would then be enlarged, by force of the act, into a feesimple. Indeed, the act provides generally (s. 39) for the enlargement of the base fee, whenever it shall happen to be united with the immediate remainder or reversion in fee, whether the base fee shall have been created by a fine prior to the act, or shall be created by an assurance under the act itself. Although the effect of a fine, and of a recovery, by a in tail under the tenant in tail has already been contrasted with the effect of his assurance under the act, yet the points in which the old and the new law agree or disagree in principle, will, perhaps, be more clearly apprehended from the following parallel, which, to those at least who are not familiar with the old learning, may be acceptable. Under the old law; -by recovery; UNDER THE OLD LAW.-1. The recovery of A., tenant in tail, (there being, of course, the requisite of a good tenant to the præcipe), acquired a new fee-simple, discharged from the estate tail and from all posterior limita-by fine of te- tions. 2. The fine of A., tenant in tail in possession, with remainder or reversion to B. in fee, barred the issue in tail absolutely, and acquired a fee-simple defeasible only nant in tail in possession. CHAPTER V. nant in tail in by the remainder-man or reversioner, to whom there was left a mere right of action. If B. afterwards released to A., then the right to the remainder or reversion was extinguished, and A. had thenceforth a clear fee-simple, founded, in point of title, upon the estate tail. 3. The by fine of tefine of A., tenant in tail in remainder, with remainder remainder; over or reversion to B. in fee, barred the issue in tail absolutely, and acquired a fee determinable on failure of such issue, (or, in the language of the books, a base fee), but did not divest or displace the remainder or reversion, which, therefore, continued to subsist as an estate expectant on the determinable fee (i). If, by any means, the remainder or reversion of B. became afterwards vested in A., then the determinable fee merged in the remainder or reversion, and A. had, thenceforth, a clear fee-simple founded, in point of title, on the remainder or reversion. 4. The fine of A., tenant in tail, whether seised in pos--by fine of tesession or not, with the remainder or reversion in fee vested in himself, was attended with the same result as in the last example, namely, the creation of a fee-simple founded, in point of title, on the remainder or reversion. In each of the three last propositions, it is assumed that the fine was in fee and with proclamations. nant in tail, with the fee in himself. UNDER THE NEW LAW.-1. Where A., tenant in tail, Under the new there being a protector of the settlement, makes, with law: of protector; sent of protec the consent of the protector, an assurance according to with consent the act, such assurance confers a new fee-simple, discharged from the estate tail, and from all posterior limitations. 2. Where A., tenant in tail, whether in posses--without consion or not, with remainder or reversion to B. in fee, there tor. being a protector of the settlement, makes an assurance under the act, which, by reason of the non-consent of the protector, is insufficient to bar the remainder or rever(i) See 2 Prest. Conv. 275. CHAPTER V. sion, such assurance bars the issue in tail, and acquires a fee determinable on failure of such issue, but does not divest or displace the remainder or reversion, which, therefore, continues to subsist as an estate expectant on the determinable fee. If, by any means, the remainder or reversion of B. becomes afterwards vested in A., the determinable fee does not merge in the remainder or reversion, as upon ordinary principles it would have done, but, by the express provisions of the act, is enlarged, and A. has thenceforth a clear fee-simple founded, in point of title, upon the estate tail. A remainder cannot, by the act of the party, be limited after a fee, whether base or simple. If, therefore, land were given to A. and his heirs so long as there should be issue of the body of B., a gift over, to take effect on failure of such issue, would be void. Such a gift would tend to a perpetuity, inasmuch as it would not be barrable by A. or his heirs. But as, before the act, there might have been, by construction of law, so, by the effect of the act, there may still be a remainder expectant on the base fee arising from an assurance by tenant in tail operating to bar the issue only. Such a remainder had not, nor has, any tendency to a perpetuity; for the right of barring it was, and still is, inherent in the person or persons to whom the estate tail, if subsisting, would have belonged (k). -there being 3. Where A., tenant in tail, whether in possession or not, with the remainder or reversion in fee vested in himself, makes an assurance under the act, the result will be the same as in the last example, namely, a fee-simple gained by the enlargement of the determinable fee, and, consequently, founded, in point of title, upon the estate tail. In the examples above proposed, it must be assumed no protector. (k) Ante, 134. that the remainder or reversion in fee is immediately expectant upon the estate tail. Thus, under the new law, the estate acquired must always be, either the clear fee-simple, arising from the enlargement of the estate tail, or a fee determinable on failure of the issue in tail, and having the quality of a particular estate, on which an actual estate in remainder or reversion may be dependant or expectant, as distinguished from the fee-simple defeasible which was gained by the fine of a tenant in tail in possession, and which left merely a naked right to be asserted by a real action. The estate of the remainder-man or reversioner is alienable inter vivos and devisable, while the bare right was only descendible. To the particular estate thus created, the legislature has ascribed, not merely exemption from liability to merge in the expectant fee, but the capacity of dilating to the whole extent of an estate in fee-simple absolute. Under the old law, there was an extinction of the right of the remainder-man or reversioner in the otherwise defeasible fee-simple; there was a merger of the determinable fee in the estate of the remainder-man or reversioner: while, under the new law, the determinable fee expands and shuts out the estate of the remainder-man or reversioner. holds, how bar rable. V. As to the barring of estates tail in lands of copy- Entails of copyhold tenure. If the entail be of the legal estate, a surrender is made necessary; but if the entail be of the equitable interest, then either a surrender or a deed of disposition (s. 50), such deed to be entered on the Court Rolls (s. 53), may be adopted. Where there is a protector, and a surrender is necessary, the entail being legal, his consent may be given, either to the person taking the surrender (s. 52), of which, if taken out of CHAPTER V. Court, the memorandum should state the consent, and be subscribed by the protector, or by deed to be produced, at or before the making of the surrender, to the steward, who is to indorse and sign a memorandum of the production, and enter the deed, with the indorsement, on the rolls, and then indorse and sign a memorandum of the entry. Where there is a protector, and a deed of disposition is adopted, the entail being equitable, the consent may be given either by the same deed, or by a distinct deed to be executed before or on the day of execution of the disentailing deed, and to be entered on the rolls, which entry the lord is bound to make (s. 53). In every case entry on the rolls is a substitute ceremony for inrolment (s. 54). Before the act, an equitable entail and equitable remainders of copyholds were generally barrable, either by pursuing the form of a customary recovery, or, if the custom of the manor did not require a recovery, by surrender; but as the lord is concerned about the legal estate exclusively, (for that estate alone can be the subject of tenure (1)), he might have refused, and often did refuse, to allow an equitable owner, who, as such, was a mere stranger, to go through the necessary forms. The difficulty was yet greater in regard to the interests of married women in copyholds, but this difficulty is also removed by the act. Effect of disposition by tenant in tail in confirming voidable estates. Voidable estates created by a tenant in tail, either before or after the act, in favour of purchasers for value, are to be confirmed by the effect of a subsequent disposition by deed inrolled under the act, (so far as the disposition may be binding on the issue and remainder-man), although such disposition may be made with a different, or even a contrary intention; except as against a purchaser for value without express notice of the voidable (1) Ante, 34, 83. |