PURCHASES. day of in the Estate Tail. year of the Equitable estates. Copyholds. Issue in tail. objection, that should the reversion have been encumbered by the tenant in tail, or any of his ancestors, the fine, by uniting the reversion to the possession, will let in such incumbrances upon the purchaser; where, therefore, there is any reason to suspect this to have been the case, a recovery should be suffered, even though the reversion be in the tenant in tail himself, but without some suspicion of this sort, the court will not, it seems, compel a tenant in tail to suffer a recovery, when the entail is barrable by fine alone. See Sterling v. Trevor, 7 Ves. jun. 497. And where the reversion or any remainders are vested in third persons, they can be barred only by recovery; this, therefore, is in general had recourse to as the most effectual mode of conveying an estate tail, and is that here adopted. And although the estate of the tenant in tail be an equitable or trust estate only, it is now held that a recovery must be suffered of it, in order to bar the entail, Legat v. Sewell, 1 P. Wms. 91. Radford v. Wilson, 3 Atk. 815. Barnaby v. Griffin, 3 Ves. jun. 266. And the form of making the tenant to the præcipe, and of the ulterior process to bar the entail, will be precisely the same as if he had the legal estate. And where a recovery is necessary to bar an entail of copyholds, it will be equally requisite to be suffered of an equitable as of a legal estate, Botley v. Allington, 1 Brow. Ch. Ca. 72. 1 Prest. 155, except in cases of bankruptcy; notwithstanding a contrary opinion which appears to have been entertained by Lord Hardwicke with respect to an equitable estate of copyholds, who appears to have thought that a surrender is in all cases sufficient to bar an equitable entail of copyholds. See Radford v. Wilson, 3 Atk. 815. But if the entail (or rather quasi entail) be of a life estate only, the remainder may, it should seem, be barred by a common conveyance, since a recovery cannot be suffered of such See ex parte Steine, 6 Ves. 158. estate. And it may be noticed that the issue or heir in tail is equally capable of acquiring the fee by common recovery, as the proper tenant in tail himself, but this privilege is confined solely to him and the heir in tail. reign, &c. and in the year of our Lord (1), PURCHASES. Estate Tail. In some cases, however, a fine may be preferable even to a Where fine recovery, as it will operate as an estoppel where a recovery will preferable. not. A fine may also be levied by a tenant in tail in remainder, who cannot, as has been already observed, suffer a recovery without the concurrence of the tenant of the immediate freehold. And as a fine may also be levied in the vacation, whilst a recovery can be suffered in term time only, it may in some cases (as where there is an apprehension of the tenant in tail dying before a recovery can be completed), be prudent to have both a fine and a recovery, by making the tenant to the præcipe by a fine levied preparatory to the recovery, in which case, as they will both together form but one assurance, the entail will be barred, although the tenant in tail should die before the recovery be perfected. This, however, must be understood where the lands are of freehold tenure, for if they are holden in ancient demesne, a fine there will not bar, it being necessary for this purpose that it should be levied with proclamations under the statute of Hen. 7. but a fine levied in the Court of Ancient Demesne is not a fine within that statute.' veyance. Where a vendor is tenant in tail, and a recovery is necessary Recovery to pass a clear inheritance, it is sometimes proper that he should before confirst suffer the recovery to the use of himself in fee, and then by lease and release convey the land to the purchaser, instead of declaring the uses of the recovery to the purchaser, in the first instance, by the deed for making a tenant to the præcipe-see Bradl. Point. Bk. 50; and this may perhaps, in all cases, be reasonably required by a purchaser on account of its lessening the expense of his conveyance. In which case the deed for making a tenant to the præcipe, may be by bargain and sale or lease and release, in the form given in WILDE'S SUPPLEMENT, Vol. I. No. XXXVI. p. 293, and the lease and release to the purchaser will be in the common form of a conveyance by those instruments. But where the estate is conveyed to the purchaser by the recovery deed, which is the more usual mode, the above will be the proper form of the assurance. (1) A deed to make a tenant to the præcipe for suffering a Date. PURCHASES. BETWEEN (the vendor) (1), (i. e. the tenant in tail) of the first part (2), (the tenant to the of, &c. Estate Tail. præcipe) (3) of, &c. (the purchaser) of, &c. of the second part, and of the third part. Recital of title. WHEREAS, by indentures of lease and release (4) Wife. Where tenant for life joins. Who may be tenant to præcipe. Title under will. recovery should be dated within the term, or before the end of the great sessions or assizes, in which the recovery is suffered— see 14 Geo. II. c. 20. (1) If the wife of the vendor have a title to dower out of the land to be conveyed, make her a party with her husband, and vary the draft agreeably to Vol. II. No. XXXI. margin (w, w, &c.). If the conveyance be intended to be taken to uses for preventing a title to dower, see post, No. XXVIII. (2) Where a tenant in tail is such of the remainder or reversion only after a prior estate for life, he cannot make a good tenant to the præcipe for suffering a legal recovery without the concurrence of the tenant for life, as it is necessary that the writ of covenant should be brought against the tenant of the freehold in possession, in which case make the tenant for life of the first part, and the tenant in tail of the second part. (3) Any person may be named tenant to the præcipe for suffering the recovery; but to prevent the expense of a dedimus potestatem, it will be proper that some person should be named who resides within a convenient distance of the court in which the recovery is intended to be suffered. Two persons are sometimes named as tenants to the præcipe, to guard against the death of one tenant before the recovery be completed; but as the writ of entry must in this case be brought against them both, and the death or want of appearance and voucher by either of them, would render the recovery ineffectual as to so much of the legal estate as was vested in him, there seems to be little use, if not some degree of danger, in this precaution, unless where it is necessary that several recoveries should be suffered in different counties, in which case; for the reason before adverted to, there may be a propriety in naming as many tenants to the præcipe, as there may be recoveries to be suffered. (4) If the vendor derive his title under a will, say, "Whereas under or by virtue of the last will and testa bearing date the which was in the year and days of the release being of parts, and made or expressed to be made between, &c. the messuages, lands, tenements, and hereditaments, therein mentioned, and hereinafter more particularly described, were conveyed and assured unto (1) the said (trustees) and their heirs, TO THE USE of (the tenant for life), of, &c. for the term of his natural life, with remainder to the use of the said (tenant in tail), and the heirs male of his body, lawfully begotten, with divers remainders AND WHEREAS the said (tenant for life) de over. , parted this life on or about the ment of A B, late of day of , deceased, bearing date the , the said (vendor) is seized to him and his heirs of an estate of inheritance in fee-tail, in possession of the messuages, lands, tenements, and hereditaments herein after described." PURCHASES. Estate Tail. (1) If the reversion be in the tenant in tail himself, and the Reversion in entail be intended to be barred by a fine, say, "Unto and to the use of the said (tenant in tail), and the heirs of his body lawfully begotten, with remainder in default of such issue, TO THE USE of the said (tenant in tail), his heirs, and assigns for ever." tenant in tail. (2) If the estate was sold by public auction, make the recital Auction. of the contract, and of the payment of the purchase money, conformably to No. XVI. p. 163, n. (4). And if the estate be sold by the direction of the Court of Sale by order of court. Estate Tail. Witness, the PURCHASES. chase of the inheritance in fee-simple of the said messuages, lands and hereditaments, at or for the price or sum of (1), and hath requested that the same may be conveyed and assured to him in the manner hereinafter expressed (2). Now THIS INDENTURE WITNESSETH, that in pursuance and execution of the said contract, and in consideration of the sum of of lawful money (3) of the United Kingdom of Great Britain and Ireland, of English value and currency, vendor in consideration of the purchase money. Consideration a transfer of money in the funds. Annuity. Purchase money retained. Sub-purchase. Tenant for life. Consideration paid otherwise than in money. Chancery, and the purchase money is to be paid into the Bank, or of the Court of Exchequer, and the money is to be paid to the Deputy Remembrancer, see the variation subjoined to the same precedent, p. 188, Rider (A). (1) If the consideration be the transfer of money in the funds, see ante, No. XVI. p. 165, n. (6). If it be the grant of an annuity during the life of the vendor, see ibid. (2) If part of the purchase money be retained until the recovery be perfected, or for any other reason, see ante, No. XVI. p. 165, n. (7). If the original purchaser has parted with his interest in the premises before a conveyance has been executed, see ante, No. XVI. p. 164, n. (5). If the tenant for life agrees to join for the purpose of making good tenant to the præcipe, but without prejudicing his own estate, add, "AND WHEREAS the said (tenant for life) has agreed to join in the said conveyance for the purpose of enabling the said (vendor) to bar the said entail, but without prejudice to the estate for life of him the said (tenant for life) therein." (3) If the consideration be paid otherwise than in money, or at any other time than at the execution of the conveyance, see the variations subjoined to No. XVI. p. 167, n. (8). |