DOE dem. DAVIES v. GATACRE. 1839. June 8, double voucher, suffered by bare tenant for life as vouchee, without feoffment or fine, Held to de stroy a contingent remainder immediately AT T the trial of this ejectment it appeared that the A common property in dispute had been conveyed by deed of recovery with April 1721 to trustees, to the use of David Evans for life; remainder to trustees, to preserve contingent remainders; remainder to the use of Elizabeth, wife of D. Evans, for life; remainder to trustees for 300 years upon certain trusts; remainder to the use of John Phillips for life;— no limitation to trustees to preserve contingent remainders; - remainder to the use of his first and other sons in tail male; remainder to the daughters of John Phillips; remainder to the use of William Phillips, expectant on brother of John, for life; remainder to his first and the life estate, other sons in tail; remainder to his daughters; re- ing the stamainder to the use of Elizabeth Phillips, sister of John, tute 14 Eliz. for life; remainder to her first and other sons in tail; remainder to her daughters; remainder to another Elizabeth Phillips, widow, for life; remainder to her first and other sons, &c.; remainder to the right heirs of David Evans for ever. In 1758, John Phillips, being in possession as tenant for life, conveyed by lease and release the premises in question to a tenant to the præcipe; and in Easter term in that year a common recovery, with double voucher, was suffered, John Phillips, the tenant for life, being vouched and vouching over the common vouchee. In 1760, Joseph, his only son, was born. In 1780, John Phillips's sister Elizabeth, who had married one Davies, died, leaving Edward Davies, her eldest son. In October 1780, William Phillips died, without issue. 34 Bear 499 17.28.29. 265 notwithstand c. 8. 1839. Doe dem. V. In 1824, Joseph, the son of John Phillips, died, without issue, and Edward Davies in 1784. The lessor of the Plaintiff was the eldest son and heir of the body of Edward Davies, and contended that GATACRE. the the recovery suffered by John Phillips in 1758 did not operate to destroy the contingent remainder to John's son, because the statute 14 Eliz. c. 8. prevented its having that operation; and, consequently, a right of entry accrued to Joseph Phillips on the death of John in 1781, and to the lessor of the Plaintiff when Joseph died without issue in 1824. The Defendants contended that the recovery of 1758 having destroyed John Phillips's life estate, and the contingent remainders dependent on it, the lessor of the Plaintiff was barred. (a) A verdict was taken for the Plaintiff, with leave for the Defendant to move to set it aside, and enter a nonsuit instead; and a rule nisi having been obtained to that effect, Hodgson (Wilde Serjt., Talfourd Serjt., and R. V. Richards were with him) now argued the case on the part of the Plaintiff. The recovery suffered by John Phillips in 1758 did not bar the contingent remainders limited after his life estate; for since the statute 14 Eliz., a recovery suffered by a tenant for life does not work a forfeiture of his life estate, the existence of which is essential to the support of contingent remainders limited after it. According to the condition of the original feudal investiture the first holder has the particular estate for the (a) The action was brought by order of the Master of the Rolls, in a suit depending in Chancery, which suit being instituted before the passing of the Statute of Limitations (3 & 4 W. 4. c. 27.) the case was not within the twenty-first section of that statute. protection of the fee, and he can only part with it by alienation, lawful or tortious; by merger; or by the lawful entry of the lord for condition broken or for forfeiture. Forfeiture may be effected two ways: 1. By tortious alienation; as by feoffment and fine: 2. By acknowledgment of an adverse title; as by accepting a fine from a stranger. By tortious alienation the whole series of limitations is displaced; a third title is introduced; and all previous ownerships are turned into a right. By acknowledgment of adverse title nothing is displaced till entry. No new ownership is actually introduced, but only a different tenure acknowledged or asserted. A recovery was considered an exception from the statute de Donis, and as a form of conveyance applicable to estates tail only: if there are any instances of its having been resorted to by tenant for life, they are rare; and it does not appear that before the statute of uses they were considered tortious assurances. Between the statute of uses and the 32 H. 8. c. 31. a recovery was considered a tortious assurance; Dixon v. Harris. (a) The statute 32 H. 8. c. 31. was passed to remove the tortious effect, by enacting that a recovery against the particular tenants of any lands should be void against such persons to whom the reversion or remainder should then appertain. That statute, which is not printed in the statutes at large, or in Coke's 2d Inst. (b), did not extend to the case in which the tenant for life came in as vouchee; Pelham's Case (c); and to (a) Vaughan, 51. (b) During this part of the argument the Court sent for the folio edition of the statutes printed by order of parliament, where the statute was found. 1839. DOE dem. v. GATACRE, 1839. DOE dem. V. remedy that, the 14 Eliz. c. 8., after reciting, "where divers persons being seized, or that have been seized of lands, tenements, and hereditaments, as tenants by the curtesy of England, tenants in tail after posGATACRE. sibility of issue extinct, or otherwise, only for term of life or lives, or of estates determinable upon life or lives, have heretofore permitted and suffered other persons, by agreement or covin between them had, to recover the same lands and tenements and other hereditaments against the same particular tenants in the Queen's Majesty's Court, or have permitted and suffered themselves to be vouched by other persons, by agreement or covin between them had, in recoveries suffered of the same lands, tenements, and other hereditaments, in the Queen's Majesty's Court, to the great prejudice of those to whom the reversion or remainder thereof hath appertained or ought to appertain," enacts, "that all such recoveries hereafter to be had or prosecuted by agreement of the parties, or by covin as aforesaid, against any such particular tenant of any lands, tenements, or hereditaments, whereof the same particular tenant is or hereafter shall be seized of any such particular estate as is aforesaid, or against any other with voucher over of any such particular tenant, or of any having or that had right or title to any such particular estate or tenancy as is aforesaid, shall, from henceforth, as against such person or persons to whom any reversion or remainder thereof by force of any conveyance or device before that time had or made, shall, ought, or lawfully may appertain, and against their heirs and successors, be clearly and utterly void and of none effect." In reporting Pelham's Case, Lord Coke is particular in observing that it occurred before the stat. 14 Eliz. In point of fact, the recovery in that case was suffered in that year, a few months before the passing of the act. The language both of the preamble and enacting part of the statute is general, and the expression "such persons to whom any remainder shall or may appertain❞ may be held to apply directly as well to contingent as to vested remainders. But it is not necessary to contend for that; because, if the statute only operated to make the recovery void as against the vested remainder or the reversion, still such an assurance, displacing no estate, working no forfeiture, could convey an interest only for the life of the particular tenant; and, as the parties in remainder or reversion were the only persons who could be affected by it as a tortious assurance, the necessary consequence of its being made void against them was to make it an innocent conveyance; good only as against the tenant for life himself. If it be asked why the statute did not extend to alienations by fine and feoffment, the answer is, that the object was to guard against clandestine assurances, whereas a feoffment is accompanied by open livery of seisin, and fine by proclamation in Court; Goodright v. Forester. (a) It is true that it has been a received opinion in the profession, that, notwithstanding this statute, a recovery had against tenant for life does operate to bar contingent remainders. But this seems rather owing to the fact that the statute has not been brought under consideration in a court of law, than to any construction which has been put on it. In the early cases after the statute no question of this sort arose: there are instances of recoveries suffered where the particular tenant was tenant to the writ, and vouched the remainder-man in tail, as in Jennings's Case (b), where the statute is mentioned, but with no (b) 10 Rep. 44. (a) 1 Taunt. 578. 1839. DoE dem. บ. GATACRE. |