the use of A. in fee, in trust for B. in tail, with remainder over, a fine levied or recovery suffered by B. in the Common Pleas, was recognized in the courts of equity, as a bar to his equitable estate: that is, a bar to the extent to which the same assurance would have operated on a legal estate of the same description (i). By the Act for abolishing fines and recoveries, a similar effect now belongs to the substituted assurance; the word "estate" being used, throughout its provisions, " to express an estate in equity, as well as at law" (k). The Statute is also framed to take effect not only on actual entails, but upon money or land liable to be converted into entailed estate. This happens in the case where trustees have been directed to invest money in land, which, when purchased, is to be settled in tail for the benefit of a certain party; or to sell land and to invest the produce in like manner. With respect to trusts of this description, the statute provides, that all the clauses it contains shall be applicable (so far as circumstances will permit) to the monies or lands so to be invested; in the same manner as they would apply to the lands to be purchased, supposing the same to be actually purchased and settled conformably to the trust. But when the trust fund consists of leasehold estate, or of money, it is to be considered (as to the person in whose favour or for whose benefit the disposition is to be made) as personal estate; and any disposition of it by the intended tenant in tail must be made, not by a conveyance appropriate to the passing of the realty, but by a mere deed of assignment inrolled in the High Court of Chancery within six calendar months after the execution (1). As the power of disposition given by this Act applies both to legal and equitable interests, so it extends to almost every species of entailed estate. The only exceptions appear to be the case of tenant in tail after possibility of issue ex (i) See Doe d. Cadogan v. Ewart, 7 Ad. & El. 636. (k) 3 & 4 Will. 4, c. 74, s. 1. tinct (m); and of those who by the 34 & 35 Hen. VIII. c. 20 (n), or any other statute, are restrained from barring their estates tail (0). II. With regard to the second object comprised in the Fine and Recovery Act, viz. the passing or binding of the estate or interests of married women (p), it contains a general provision that a feme covert shall be as competent as if she were a feme sole, to dispose by deed, of lands of any tenure, or of money subject to be invested in the purchase of lands; and also to extinguish any estate which she, (or she and her husband in her right,) may have, or any power, which may be vested in her, in regard to lands or to money of that description;-provided only that her husband shall concur in the deed (g), and that upon her executing the same, or afterwards, she produce and acknowledge it before the proper authorities (r). The persons before whom it is to be acknowledged are either a judge of one of the superior courts at Westminster, or two of the perpetual or special commissioners appointed for that purpose in the manner directed by the Act (s): and they are (m) 3 & 4 Will. 4, c. 74, s. 18. As to this estate, vide sup. p. 267. By 14 Eliz. c. 8, a recovery suffered by a tenant in tail of this description was void as against those in reversion and remainder, if suffered without their consent. (n) 3 & 4 Will. 4, c. 74, s. 18. It may be remarked here, that estates tail within the restriction of 34 & 35 Hen. 8, are excepted also from the operation of the powers given to the Court of Chancery as to settled estates by 19 & 20 Vict. c. 120. Sec sect. 42 of that Act. (0) Among these statutes, the 11 Hen. 4, c. 20, as to estates tail ex provisione viri (as to which vide sup. p. 581), is not included. For, as to future settlements of that descrip. tion, that Act is repealed; and as to existing settlements, the power of disposition is conferred on the tenants of such estates, subject to their obtaining such assent as would have been required under that Act, to render valid a fine or recovery. (See 3 & 4 Will. 4, c. 74, ss. 16, 17.) (p) As to the general state of the law, with respect to purchases and conveyances of land by married women, vide sup. p. 481. (q) 3 & 4 Will. 4, c. 74, s. 77. See Cross v. Middleton, 25 L. J. (Ch.) 513. (r) 3 & 4 Will. 4, c. 74, s. 79. (s) By the Fine and Recovery Act, the "Masters in Chancery" are also specified as persons before whom an acknowledgment may be taken. directed, before they receive the acknowledgment of the feme covert, to examine her apart from her husband, in order to ascertain her free and voluntary consent; in the absence of which, the acknowledgment is to be rejected, and the deed becomes void, as far as relates to her execution (t). Supposing the acknowledgment on the other hand to be received, an official memorandum of the fact is to be written on the foot or margin of the deed; and a certificate of it is to be also drawn up and signed on a separate piece of parchment, and verified by affidavit; and the certificate and affidavit are then to be filed of record, in the Court of Common Pleas at Westminster (u). Until so recorded, the deed will have no effect as regards the party under coverture (v) ; but, when the record is complete, it will operate to affect her interest, (by relation,) as from the time when it was acknowledged. When the object of the disposition is to bar the estate tail of a married woman, the same course of proceeding is to be observed as in the case of other tenants in tail; and the ceremony of acknowledgment (with all its attendant forms) is to be superadded (x). The proceedings relative to acknowledgment are made subject, as to some of their details, to the regulation of the Court of Common Pleas at Westminster (y); which is also But, as to the masters in chancery, see now 15 & 16 Vict. c. 80. By 19 & 20 Vict. c. 108, s. 73, the acknowledgment may now also be received by a judge of a county court. (t) 3 & 4 Will. 4, c. 74, s. 80. (u) By 17 & 18 Vict. c. 75 (passed to remove some doubts), no deed acknowledged by a married woman before a judge, &c., as above mentioned, shall be impeached, at any time after the certificate of acknow. ledgment has been filed, by reason only that such judge, &c., was interested or concerned in the trans action giving occasion for such acknowledgment. (v) See Jolly v. Handcock, 7 Exch. 820. (x) 3 & 4 Will. 4, c. 74, ss. 40, 79. (y) Sect. 89. The Rules of the Court of Common Pleas under this Act, are of Hilary and Trinity Terms, 1834. (See 10 Bing. 458; 1 Bing. N. C. 242.) There had been previous Rules (now revoked) of Michaelmas, 1833. See also Reg. Gen. T. T. 4 Will. 4, and 25 & 26 Vict. c. 96. empowered by order, in a summary way, upon the application of the wife, and upon such evidence as to the court shall seem meet, to dispense (in every case where it shall appear reasonable to do so) with the concurrence of the husband in her acts, whether in barring an estate tail, or executing a deed for any other purpose (z). The latter provision, however, is made with an express saving of such rights as the husband may possess independently of the Act (a). Such are the substitutes now provided by the legislature, in lieu of fine and recovery. The superiority of the new methods is manifest at the first glance; but, in order to obtain a clear idea of the extent and nature of the reform which has been effected, it will be useful to advert to some of the specific points of difference between the present and the former system. The most obvious improvement is, that, instead of applying modes of assurance altogether peculiar and anomalous, to the case where a tenant in tail or a married woman is the conveying party; the law now enables them to pass their interests, by an instrument of the same description (in general) as is used in other alienations of real estate; and thus establishes a greater uniformity in the methods of conveyance. Nor is this a benefit of small amount; for all deviations from general rule engender difficulties, render the practice of the law less certain, and powerfully promote the purposes of chicanery. The forms recently introduced, possess also the advantage of being incomparably clearer and simpler than those which they have superseded. Considerable subtlety indeed attends a conveyance under the Statute of Uses; but it is to be recollected that fines and recoveries (when taken in connection (z) 3 & 4 Will. 3, c. 74, s. 91. See in re Darling, 2 C. B. 347; Re Turner, 3 C. B. 166; Re Dixon, 4 C. B. 631; Ex parte Taylor, 7 C. B. 1; Re Eden, 28 L. J., C. P. 4; Ex parte Haigh, 2 C. B., N. S. 198; Ex VOL. I. parte Anderson, ib. 118. The court Q Q with their appendages, the deeds to lead or declare the uses) themselves operated as conveyances under the statute; while at the same time they involved a fiction of the most intricate and artificial description, from which the substituted assurances are exempt. To this it may be added (and the point is by no means of subordinate importance), that the substitutes are considerably less expensive than their predecessors; the charges connected with a fine or recovery (particularly the latter) having been so high as to form one of the most prominent reasons for their abolition. To pass from general to particular considerations, the former system was objectionable, from the necessity which it frequently occasioned of creating a tenant to the præcipe; for, besides the inconvenience of being obliged to make an actual transfer of the freehold, for this purpose, to a stranger, it frequently happened that parties, without whose concurrence the freehold could not be effectually conveyed, were by some mistake not joined in the proceedings, or refused to join in them, or could not be discovered (b). But, under the new system, all these annoyances are, by a neat and simple arrangement, avoided; while the only real benefit resulting from the antient practice, is at the same time effectually secured. For as the protector is always constituted by the same settlement as the tenant in tail, there can rarely be any difficulty in finding him out; and supposing the relation of parent and child to exist between them (as will usually be the case), there can be no reason to fear that compliance will be refused from an unworthy motive; nor, in case of compliance, will any conveyance to a stranger be necessary, the mere consent of the protector (given in due form) being all that the statute requires. It ought, lastly, to be mentioned, as a further recommendation of the new assurances, that they are capable of being executed at any time that convenience may suggest; in which respect they differ very (b) See the first Real Property Report, p. 24. |