CHAPTER XIX.

OF CONVEYANCES BY TENANTS IN TAIL, AND
MARRIED WOMEN.

BOTH Conveyances at common law, and those under the Statute of Uses, are capable of being applied to transfer the interests of tenants in tail and married women: but as they are not effectual for these purposes, except by virtue of certain acts of parliament, distinct from the Statute of Uses, nor without observing the solemnities which those Acts prescribe, they may therefore properly be considered, when applied to either of these purposes, as constituting a separate class of conveyances by force of the statute law.

Though a tenant in tail has an estate of inheritance, yet by none of the conveyances hitherto examined, if in their simple form, that is, unaccompanied with the solemnities above referred to, can an indefeasible interest be granted by him beyond the period of his own life-except in such case and to such extent as is provided for by a recent statute referred to in a former place (a); for whatever estate he grants, must either determine with his life, or at least is liable to be defeated, after his decease, by his issue, or, in default of issue, by the remainderman or reversioner. And again, a married woman, or, (as she is technically called) a feme covert, is not capable by any of these conveyances (b), in their simple form, to make alienation of her lands and tenements (except as regards her equitable interest in property given in trust to her separate (a) Vide sup. pp. 257, 258. (b) 2 Bl. Com. 292.

use), for any estate whatever, or to subject them to any charge (c).

These incapacities result indeed, in the two cases, from very different causes. That of the tenant in tail is by the effect of the Statute de Donis (d), passed to protect the interest of those in succession and expectancy, in the case where land is given to a man and the heirs of his body; but the incompetency of the feme covert is a personal one, and imposed upon her by the common law (with other similar disabilities) in consequence of her being subject to the control of her husband, and presumably deprived of her freedom of agency. In both cases, however, notwithstanding the general rule of restriction, the law has long allowed a more ample power of alienation to be exercised through the medium of particular methods of assurance; in former times by fines and recoveries, which were altogether of a special nature, and now by any of the ordinary conveyances already examined, with the accompaniment only of certain forms or solemnities of a special kind. The mode of alienation as regards tenant in tail and married women respectively, may be considered therefore as naturally forming one entire or consolidated subject, and has in fact been so treated by the legislature.

This branch of law is now chiefly regulated by the 3 & 4 Will. IV. c. 74, the statute for abolishing Fines and Recoveries by the provisions of which, a tenant in tail is empowered, in such methods as therein mentioned, to bar the estate tail (as it is commonly expressed), that is, to confer a fee simple absolute (or any less estate) on the person to whom he conveys, indefeasible by the issue, or by any ulterior claimants; and a married woman may also, by such means as there specified, dispose, with the husband's in her on condition to convey to others. And such acts as these may be done by her without her husband. Co. Litt. by Harg. 112, n. (6).

(c) The restriction on a feme covert's power of alienation, does not extend however to the case where she conveys in execution of a mere power or authority; or in performance of a condition, as where land is vested

(d) 13 Edw. 1, c. 1; vide sup. p.

249.

concurrence, of any estate which she alone, or he in her right, may have, as fully and effectually as if she were a feme sole (e). The modes of proceeding to be adopted for these purposes are (as already stated) new, and by way of substitution for the antient methods of fine and recovery; which being now abolished (ƒ), and of a character besides peculiarly abstruse and uninviting, we would gladly pass by without further notice. The learning, however, which they involve, is still so material to the history of existing titles, and even to the correct apprehension of the new system, that they cannot with propriety be left unexamined; and before we attempt to give any further account of the substituted methods, we shall think it expedient to discuss, at some length, the nature of a fine and of a recovery.

They were both of the class of conveyances by matter of record; and both consisted of fictitious suits in the Court of Common Pleas at Westminster, in which the intended alienee was supposed to recover the estate by process of law. In their origin, indeed, they were actual suits commenced at law for the recovery of the possession; but being found competent to confer a title, in cases where the ordinary conveyances would not suffice, they were at length adopted as mere means of transfer between persons not really standing in the relation of adverse litigants (g). It will be necessary however to consider them successively and in detail.

And first, of Fines.

A fine was so called, because it put an end, [not only to the suit then commenced, but also to all other suits and controversies concerning the same matter. Or as it is expressed in an antient record of parliament, (18 Edw. I.,) "Non in regno Angliæ provideatur vel sit aliqua securitas major seu solennior per quam aliquis vel aliqua statum cer

(e) 3 & 4 Will. 4, c. 74, s. 77. (f) Sect. 2.

(g) 2 Bl. Com. 349, 357.

[tiorem habere possit, vel ad statum suum verificandum aliquod solennius testimonium producere, quam finem in curiâ domini regis levatum ; qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet; et hâc de causâ providebatur (h.)" Fines, indeed, are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil (i) and Bracton (j), in the reigns of Henry the second and Henry the third, as things then well known and long established; and instances are produced of them, even prior to the Norman invasion (k). So that the statute 18 Edw. I., called Modus levandi Fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on.] And that was as follows.

1. The party to whom the land was to be conveyed, or assured, commenced an action or suit at law against the intended vendor, (generally an action of covenant,) by suing out a writ denominated, from its initial words, a writ of præcipe quod teneat conventionem (1); the foundation of which was a supposed agreement or covenant that the defendant should convey the lands to the plaintiff: on the breach of which agreement the action was brought. On this writ, there was due to the crown, by antient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one tenth of the annual value (m). The suit being thus commenced, then followed, 2. The licentia concordandi, or leave to agree the suit (n). For as soon as the action was brought, the defendant, knowing himself to be

(h) 2 Roll. Abr. 13.

(i) L. 8, c. 1.

(j) L. 5, t. 5, c. 28, s. 7,

(k) Plowd. 369.

(1) A fine might also be levied on a "writ of mesne," of warrantia charta, or de consuetudinibus et servitiis. (Finch, L. 278.)

(m) 2 Inst. 511.

(n) It seems doubtful whether this

is the true principle on which the licence was required; for it is said that, in the times of strict feudal jurisdiction, if a vassal had commenced a suit in the lord's court, he could not abandon it without leave; lest the lord should be deprived of his perquisites for deciding the cause. (Robertson, Hist. of Charles V., Sect. I.)

in the wrong, was supposed to make overtures of peace and accommodation to the plaintiff, by whom they were accordingly accepted; but having, upon suing out the writ, given pledges to prosecute his suit, which he endangered, if he now deserted it without licence, he therefore applied to the court, for leave to make the matter up. This leave was readily granted; but, for it, there was also another fine due to the king, by his prerogative, called the king's silver, or sometimes the post fine with respect to the primer fine before mentioned. And it was as much as the primer fine and half as much more, or 10s. for every five marks of land d; that is, three-twentieths of the supposed annual value (o). 3. Next came the concord, or agreement itself, after leave obtained from the court; which was usually an acknowledgment from the deforciants (or those who kept the other out of possession), that the lands in question were the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine was called the cognizor, and he to whom it was levied the cognizee. The acknowledgment was to be made either openly in the Court of Common Pleas, or else before one of the judges of that court, or before two or more commissioners (in the country) empowered by a special authority, called a writ of dedimus potestatem; and these judges and commissioners were bound, by statute 18 Edw. I. st. 4, to take care that the cognizors were of full age, sound memory, and out of prison. And if there were any feme covert among the cognizors, she was privately examined, whether she did it willingly and freely, or by compulsion of her husband. By these acts, all the essential parts of a fine were completed; and if the cognizor died the next moment after the fine was acknowledged, provided it were subsequent to the day on which the writ was made returnable (p), still the fine was to be carried on in all its remaining parts: of which the next was, 4. The note of

(0) 5 Rep. 39; 2 Inst. 511; stat. 32 Geo. 2, c. 14.

(p) Price v. Davies, Comb. 71.