One great objection to the dependence on recitals, is, that the external circumstances of execution and attestation seldom or ever appear, so that these important facts are thus left unproved. (a)

Where title-deeds are produced of a more remote date than sixty years, and a defect appears in the title antecedent to the sixty years, although a good title could apparently be made from that period, it would seem that a purchaser would not be compelled to accept the title; but it is believed that there is no decision on the point. (b)

(a) See Bryant v. Busk, 4 Russ. 1. stated post.

(b) See Prosser v. Watts, cit. ante, p. 66.

CHAPTER V.

OF ABSTRACTS OF TITLE OF FREEHOLD PROPERTY.

It will now be proper to detail the particular rules relating to abstracts of title of all the ordinary kinds of property; and, first, we shall turn our attention to abstracts of title of freeholds. And this chapter will be divided into-I. Titles under tenants in fee. II. Titles under tenants in tail. III. Titles under tenants for life. IV. Titles under tenants pur auter vie. V. Titles under remainder-men and reversioners: and VI. Titles under tenants of cross remainders.

I. TITLES UNDER TENANTS IN FEE.

Estates in fee are either-1. Estates in fee; or 2. Base, qualified, or conditional fees. (a) Where a qualification is annexed to a fee, it is base, or qualified; where a condition is annexed, it is conditional.

(a) Plowd. 557.

1. A tenant in fee simple may grant any less estate, or charge his estate in any manner he thinks fit, or annex to it any conditions he pleases, so as such conditions be not repugnant to the rules of law, and in particular the law against perpetuities. (a)

2. A tenant of a base, or determinable, or conditional fee, will have equal powers over his estate, to a tenant of an absolute fee-simple, with the exception, that while the estate continues determinable, an estate derived out of this determinable estate will be subject to the same determination, according to the maxim, cessante statu primitivo, cessat atque derivativus. But when the estate shall become indeterminable, the derivative estate will become absolute. (b)

II. TITLES OF TENANTS IN TAIL.

All alienations and all charges by a tenant in tail will be good against himself, to the extent of his estate and interest; and if he afterwards acquire the fee simple, they will be as good as if he were seised in fee simple. (c)

A grant or lease will bind the issue in tail, until avoided by their entry or action. (d)

Where a discontinuance is effected, the estate of the tenant in tail, and of those who had the reversion or remainder, will be turned into a right of action; and while the discontinuance remains in force, the new estate will subsist, until avoided by the action of the issue in tail, or of the persons in remainder or reversion. (e)

(a) Com. Dig. Tit. Estate, (G. 2.) Doe d. Vaughan v. Meyler, 2 M. & S. 276. Co. Litt. 1 b.

(b) 1 Prest. Abs. 378.

(c) 1 Prest. Abs. 380. 1 Saund. 260. n. (1)

(d) Neville v. Rivers, 7 T. R. 276. (e) 1 Prest. Abs. 382.

A feoffment, a fine, a release, or a confirmation with warranty by a tenant in tail, will create a discontinuance; but if a fine be levied with proclamations, it will bar the issue. (a)

But a lease and release, bargain and sale, or covenant to stand seised, will not create a discontinuance; and the estate created by these assurances may be avoided by the simple entry of the issue, or persons in remainder or reversion. (b)

A partial discontinuance may be created by a lease for the life of the grantee, with livery of seisin, which may be enlarged by a grant of the new reversion created by the lease and livery; but unless it be so enlarged, it will cease on the determination of the estate conveyed by the lease. (c)

A lease and release and fine, as parts of the same assurance, will work a discontinuance by reason of the fine; but if a lease and release be first executed, and a base fee be thereby created by a rightful conveyance, a fine with proclamations, levied subsequently by the releasor to the tenant of the base fee for further assurance, will not create a discontinuance of the remainder, because the seisin of the remainder was not divested by the first assurance; and a fine by a tenant in tail, not seised by force of the entail, will not create a discontinuance. (d)

A recovery operates rather as a conveyance than as a discontinuance, and enlarges the estate tail into a fee-simple. (e)

It is now quite clear that a tenant in tail can con

(a) Com. Dig. tit. Est. B. 24, 25. (b) Machil v. Clarke, 2 Salk. 619. S. C. 2 Ld. Raym. 778; and see Goodright v. Mead, 3 Burr. 1703.

(c) 1 Prest. Abs. 375. 3 Prest.

Abs. 220.

(d) Co. Litt. 332 b. Doe d. Jones v. Jones, 1 B. & C. 258.

(e) 1 Prest. Abs. 381.

vey, even by bargain and sale, or lease and release, an estate of inheritance which will continue as long as the estate tail shall continue, or till it shall be avoided by those who have a right to avoid the same. (a)

An alienation by a tenant in tail, although originally avoidable, may eventually become absolute, either against his issue, or according to the nature of the assurance against those in remainder or reversion. Thus if a tenant in tail grant to another any estate or interest, and afterwards levy a fine with proclamations, the estate granted will become good as against his issue; and if he suffer a common recovery, it will become good against those in remainder or reversion. (b)

It must be remembered, however, that a tenant in tail can only acquire an absolute fee-simple, where his estate is derived out of a fee-simple; for where it it derived out of a base or determinable fee, he can only by means of a fine or recovery extend his estate tail to the duration of that base or determinable fee. (c)

A recovery suffered by tenant in tail will not bar any leases, charges, or encumbrances affecting the estate granted by the tenant in tail himself. (d) But it will bar all conditions and collateral limitations annexed to the estate tail, and all charges which partake of the nature of collateral limitations, and also all charges derived out of the reversion or remainder. (e)

Seymour's case, 10 Co. 95. Machil v. Clarke, 2 Ld. Raym. 778. Contra, Tooke v. Glasscock, 1 Saund. 260. Litt. ss. 612, 613, 650.

(b) See 1 Saund. 260, n. (1).

(c) 1 Prest. Abs. 393.

(d) Capel's case, 1 Co. 62 b. (e) Benson v. Hodson, 1 Mod. 108. Page v. Hayward, 2 Salk. 570. Driver v. Edgar, Cowp. 379. Gulliver v. Ashby, 4 Burr. 1929.