Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

. (page 10 of 53)
Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 10 of 53)
Font size
QR-code for this ebook


De Donisy '< if a fine be levied hereafter of such lands, it shall be void



Digitized by VjOOQIC



FBES TAIL, OR ESTATES TAIL. 65

in the law," its principle was expressly affirmed by the 32 Hen. 8,
o. 36 ; which enacts, that all fines levied with proclamations, whether
before or after the Act by any person of full age, of any hereditaments
intailed to him or any of his ancestors, in possession, reversion,
remainder, or in use, shall be, immediately after the fine levied,
engrossed, and proclamations made, deemed to all intents and pur-
poses a sufficient bar for ever against such person and his heirs claim-
ing the same hereditaments or any parcel thereof only by force of
any such entail.

Some remarks upon the operation of fines as against strangers, will
be found below, at pp. 91 ei seq.

A warranty was a covenant real annexed to an estate of freehold,
arising either by implication of law, or by express contract. (Prest*
Shep. T. 181.) As an express contract, a warranty could be created
only by the use of the word warrantizo or tcarrant. (litt. sect. 733.)
The benefit of the warranty (if the estate of freehold was also of in-
heritance) descended to the heir of the warrantee, and the burden to
the heir of the warrantor. The warranty conveyed no estate, but, so
far as it was effectual, operated as a bar to prevent the heir of the
warrantor from enforcing a claim to the lands as against the heir of
the warrantee. The epithets lineal and collateral, as applied to
warranties, do not refer to the lineal or collateral descent of the heir
of the warrantor from his ancestor ; but solely to the question, whether
his claim by inheritance to the lands, and his liability to the warranty,
were both derived from the same ancestor through the same line of
descent, or not. In the former case the warranty was lineal, in the
latter collateral. (1 Prest. Abstr. 410.) The only point in the
intricate learning of warranties which requires to be noticed, is, that
a lineal warranty, if accompanied in its descent by assets, but not
otherwise, was a bar even to the issue in tail, notwithstanding the
statute De DoniSf in respect of the estate tail. (litt. sect. 712 ; Co.
Idtt. 374 b.) The efficacy of a common recovery, as an assurance by
tenant in tail, depends upon this proposition.

A common recovery was a collusive action of recovery, not com-
promised, but prosecuted to judgment by the demandant or recoveror
against the recoveree. In its most usual form, as an assurance by a
tenant in tail, it was brought by a collusive demandant against a
collusive tenant to the prcecipe, to whom an estate of freehold had
been conveyed by the person in whom the immediate freehold in the
lands was vested, in order to enable him to act as defendant ; for a
common recovery was obliged to conform in all essential points to the
real action whidb it ooUusively represented, and by the common law

C. F



Digitized by VjOOQIC



66 ON ESTATES.

no action of recovery was well grounded unless brought against the
actual tenant of the first estate of freehold in the lands sought to be
recovered ; for default of which the recovery might hefalsifiedy or set
aside, upon a plea of non-tenure. (Booth, Eeal Actions, pp. 29, 80.)

The common law rule concerning the tenant to the prcecipe was
f oimd to be very inconvenient in pltices where it was the custom to let out
lands on leases for lives at a rent; and by 14 Geo. 2, c. 20, ss. 1, 2, it was
enacted, that all common recoveries suffered or to be suflfered without
the concurrence of such lessees, should be as valid and effectual as if
they had concurred, provided that the person next in remaindCT or
reversion should convey an estate for life at least to the tenant to the
prcBcipe,

The tenant to ^^ prcecipe admitted the claim, but vouched to war-
ranty {vocavit ad wairantizandum) the tenant in taQ, who admitted
the warranty, but vouched over somebody'else, always a man of straw,
usually the crier of the court, who was therefore styled the common
vouchee. The demandant recovered against the tenant to the prcecipe^
who recovered against the tenant in tail, who recovered against the
common vouchee. The recompense in value, supposed to be recovered
from the common vouchee, had the same effect in law as actual assets
to make the warranty good against the issue in tail. And since the
recompense, if it had really been recovered, would have descended
according to the descent of the lands for which it was a substitute, the
remainderman or reversioner was equally within the benefit of the
recompense, and was held to be equally barred by the recovery.

The Act to abolish Fines and Eeeoveries (3 & 4 Will. 4, c. 74)
enacts (sect. 2), that no fine shall be levied or common recovery
suffered, except those then pending, after the 31st December, 1833 ;
and also (sect. 14) that all warranties of lands made after that day by
tenant in tail, shall be void against the issue in tail and all persons
whose estates are to take effect after or in defeasance of the estate
taiL

As an assurance by a tenant in tail, a fine had this advantage over
fi recovery, -that by virtue of the provisions of the 32 Hen. 8, o. 36, it
could be levied without the concurrence of the tenant of the immediate
freehold, while a recovery could not be suffered without obtaining
either his concurrence or, in case the immediate freehold was in the
hands of a lessee for lives at a rent, the concurrence of the statutory
substitute provided by 14 Geo. 2, o. 20. Any estate tail, though in
remainder, or contingency, or to arise by way of executory limitation,
was barred by a fine (with proclamations) levied by the person
entitied thereto. (1 Prest. Abstr. 402.) This clearly appears by the
above-cited language of the statute.



Digitized by VjOOQIC



FEES TAIL, OR ESTATES TAIL. 67

But a fine barred only the issue in tail ; so that a fee simple could
not be obtained by it, unless one of the parties had also a remainder,
OP reversion, in fee simple expectant upon the estate tail.

A recovery barred as well the estate tail as also all remainders, and
the reversion, expectant thereupon; and destroyed all executory
limitations, conditions and powers annexed thereto, whereby the
person entitled to the benefit of the recovery obtained as large an
estate as could by possibility have been made by the settlor who created
the estate tail.*

But a recovery had no effect upon estates derived out of, or upon
charges affecting, the estate tail. (3 Prest. Abstr. 137.)

Tenant in tail after possibility of issue extinct could not suffer a
common recovery ; nor can he at the present day make any disposition
under the 3 & 4 Will. 4, c. 74. (See sect. 18.) But he has, when his
estate is in possession, the powers of a tenant for life imder the-
Settled Land Act, 1882. (See sect. 58 of that Act.)

By the 11 Hen. 7, c. 20, recoveries by women tenants in tail ex
provisione viri are made void. This Act is repealed, except as to
settlements made before the 28th August, 1833, by the 3 & 4 Will. 4,
c. 74, s. 17.

By the 34 & 35 Hen 8, c. 20, no recovery suffered by any tenant
in tail of lands whereof the reversion or remainder is in the king,
shall bind the heirs in tail. Nor can such a tenant in tail make any
disposition under the 3 & 4 Will. 4, c. 74. (See sect. 18.) But
when his estate is in possession, he can exercise the powers of a
tenant for life imder the Settled Land Act, 1882 ; and so as to bind
the crown by such exercise. (See sect. 58 of that Act.)

The analogy of fines and recoveries has been to a considerable
extent followed by the 3 & 4 Will. 4, c. 74 ; which enables every
tenant in tail, whether in possession, remainder, contingency, or
otherwise, after the 31st December, 1833, by any assurance (other
than a will) by which he could have made the disposition, if his

. • 1 Prest. Abstr. 393 ; 3 Hid. 137 ; 1 Prest. Conv. 2^ 17. Not necessarily, as
is commonly said, a fee simple, lie remarks, however, that the point has never
been actually decided. But it seems to be too obviously true to need decision.
It is also to be observed that the language of 3 & 4 Will. 4, c. 74, s. 15, which
enables a tenant in tail (subject to certam conditions) to dispose of the intailed
lands as against the issue in tail, and also all persons whose estates are to take
effect after the determination or in defeasance of the estate tail, does not affect
persons claiming by title jparamount to that of the settlor. An estate tail may
be derived out of a determinable fee ; and in such a case the estate tail itself, or
any base fee into which it may have been converted, and also any estate, though
purporting to be a fee simple, created by any disposition made by the tenant iii
tail under the Act, will, ipso facto, cease ana determine upon the determination
of the determinable fee out of which they were derived. ( Cmanie statu primitivo,
cessat derivativtfs, Vidt supra ^ p. 30.)

f2



Digitized by VjOOQIC



68 ON ESTATES.

ostate were an estate at law in fee simple absolute, to dispose of for
an estate in fee simple absolute, or for any less estate, the lands
intailed, as against all persons claiming the lands intailed by force
of any estate tail vested in the person making the disposition, and
also, with the consent of the person (if any) who under the act is
protector of the settlement, as against all persons, including the
crown, whose estates are to take effect after or in defeasance of anj
such estate tail. (See sects. 15, 34 and 40 of that Act.) Such consent
is not needed, if the tenant in tail is also entitled to an immediate
remainder or reversion in fee. (Sect. 34.) Here the "woid/ee means
fee simple.

The phrase, whose estates are to take effect after or in defeasance of
the estate tail, is not applicable to persons coming in by title para^
mount; and therefore the utmost operation of every disentailing
assurance is confined to barring estates arising imder the settlement,
together with the reversion, if any, upon such estates. It follows,
that no greater estate can be gained by any disentailing assurance,
than could by possibility have been made by the settlor by whom the
estate tail was created. In this respect, the operation of a modem
disentailing assurance is exactly co-extensive with the operation of
a common recovery.

The disentailing assurance will have this, its utmost possible opera-
tion, in each of the following cases : —

(1) If the tenant in tail by whom it is made is tenant in tail in

possession; or

(2) If, though not in possession, he is entitled to the immediate

remainder, or reversion in fee simple upon his estate tail ; or

(3) If, though he is neither in possession nor entitled to the imme-

diate remainder or reversion in fee simple, the disentailing
assurance is made with the consent of the protector of the
settlement. Such consent must be given either by the same
assurance, or by a deed to be executed on or before the day
on which the assurance is made. (Sect. 42.)
In all other cases the assurance will bar only the estate tail, anjl
thus create a base fee.

The protector may be appointed by the settlement (sect. 32) ; and
otherwise is generally the person having imder the same settlement
the first estate of freehold, or for years determinable on the dropping
of a life or lives, prior to the estate tail, in the same lands (sect. 22).
Husband and wife jointly are the protector, in respect of an estate
which would have qualified the wife, if sole ; tmless it is settled, or
agreed or directed to be settled, by the settlement, to her separate
use, in which case she alone is the protector (sect. 24). Numerous
other provisions are made to meet special cases. In certain cases, the



Digitized by VjOOQIC



FEES TAIL, OR ESTATES TAIL. 6D

proteotor of a settlement made before the Slst December, 1833, is
the person who would have been the proper person to have made
the tenant to the prcecipe for suflEering a common recovery. (Sects.
29, 30.)

The Married Women's Property Act, 1882, (45 & 46 Vict. c. 75,)
does not seem to make the concurrence of the husband as protector
unnecessary, in any case in which it would have been necessary if
that Act had not been passed. But the question does not appear to
have been foreseen, and it must be answered with some caution.

No disposition under the 3 & 4 Will. 4, c. 74, by a tenant in tail
(except a lease for not more than twenty-one years, to commence in
possession or within twelve months from the date, at a rent not less
than five-sixths of a rack-rent) has any operation under the Act^ unless
inrolled in the Court of Chancery (now the Chancery Division) within
six months after its execution. (Sect. 41.)

It follows that the operation of any assurance by tenant in tail,
wanting inrolment, remains the same now as it would have been before
the Act.

It is now clearly settled that by such conveyance, if purporting to
convey the whole estate of the tenant in tail, the assign takes a base
fee, liable to be determined, after the death of the tenant in tail, by
the entry of the issue in tail. {Machil v. Clark^ 2 SaJk. 619 ; 2 Ld.
Raym. 778 ; 7 Mod. 18 ; overruling Toohe v. Glasscock^ 1 Saund. 260.)
The words in Litt. seels. 613, 650, which seem to import that the
assign takes an estate pur autre vie only, must be understood to mean,
that his estate is liable to be determined upon an event which would
ipso facto determine an estate pur autre vie. (See Stone v. Newman^
Cro. Oar. at p. 429.)

That the estate of the assign is of inheritance, is proved by the
fact that his wife was entitled to dower out of it, during its con-
tinuance. (3 Eep. 84 ; 10 Rep. 96.)

A tenant in tail, when his estate is in possession, has the powers
conferred upon a tenant for life under a settlement by the Settled
Land Act, 1882. This provision includes a tenant in tail after possi-
bility of issue extinct; also a tenant in tcdl who is restrained by statute
from barring his estate tail, and although the reversion is in the
OTOWn ; but not a tenant in tail so restrained in respect of land pur-
chased with money provided by parliament in consideration of public
services. (See sect. 58 of the Act.)



Digitized by VjOOQIC



70 ON ESTATES.

Chapter XV.

BASE FEES.

The earliest (not to say the only) attempt to define the term base
fee with which the present writer is acquainted, is that given by
Plowden ;* and his definition is substantially as follows : — A base fee
is a fee descendible to the heirs general, upon which subsists a
remainder or reversion in fee simple. Here the descent to the heirs
general distinguishes it from a fee tail, where the descent is to the
heirs of the body ; and the existence in expectancy upon it of a
remainder or reversion, distinguishes it from common law fees.

The conditions laid down by this] definition can only be f ulfilledt
by the conversion of a fee tail into a fee descendible to the heirs
general, by some method which does not destroy the. remainder or re-
version previously subsisting upon the fee tail. For no fee descendible
to the heirs general which arises by mere limitation, can have sub-
sisting upon it any remainder or reversion. (Co. Litt. 18 a.)

From these considerations it follows that a base fee is either (1) the
estate taken by the grantefe, under any assurance by a tenant in tail
which is efEectual to bar the issue in tail (or, at least, to put the issue
in tail, evoji after his right has accrued in possession, to a right of
entry), but ineffectual to bar the remainders (if any) or reversion
expectant upon the estate tail ; or (2), when an estate tail is barred to
the same extent, but by the mere operation of law without the
execution of any assurance, a base fee is the estate taken by the
person entitled to the benefit of such legal bar.

It is believed that the following attempt is the first ever made to
give a complete list of the methods by which a base fee may now
arise, or might formerly have arisen : —

List of Base Fees.
(1) Before the 3 & 4 Will. 4, o. 74, a base fee might have arisen
by the operation of a fine levied by a tenant in tail, not
also entitled to the remainder, or reversion, in fee simple
expectant on the estate tail.

♦ ** A third Estate in fee may be called a base fee, and that is, where A. has a
good and absolute estate of fee simple in land, and B. has anotiier estate of fee
in the same land, which shall descend from heir to heir, but which is base in
respect of the fee of A., aa being younger than the fee of A., and not of absolute
perpetuity as the fee of A. is." Howd. 557. He proceeds to specify the case of
a tenant in tail attainted of high treason.

t Unless the case mentioned at the end of the chapter is an exception to tiie
rule.



Digitized by VjOOQIC



BASB FEES. 71

(2) A base fee may now, since the 3 & 4 Will. 4, o. 74, arise by

the operation of an assurance made by a tenant in tail,
which is insufficient to bar the remainder, or reversion, upon
the estate tail, but is sufficient to bar the issue in tail.
{Vide supra f p. 68.)

(3) At common law, before the passing of 34 & 35 Hen. 8, c. 20,

a base fee might have arisen by the operation of a common
recovery suffered by a tenant in tail, when the remainder,
or reversion, in fee simple expectant on the estate tail, was
vested in the crown. Under such circumstances the
recovery would have barred the issue in tail, but not the
crown, by reason of the crown's prerogative.

The last-mentioned statute enacted, that such a recovery
should not bind the heirs in tail, nor can such tenants in tail
now make any disposition under the 3 & 4 Will. 4, c. 74.

(4) During the interval which elapsed between the 26 Hen. 8, c. 13,

whereby fees taQ were made liable to forfeiture for high
treason, and the 33 & 34 Vict. c. 23, whereby forfeiture was
abolished, a base fee would have arisen, in favour of the
crown, upon the attainder of a tenant in tail for high
treason, which endured so long as there was in existence
either the donee in tail or any issue capable of having
inherited under the entail. {Wakingham^a Case, Plowd.
552 ; see p. 557 ; Stone v. Neicmany Cro. Oar. 427.)

(5) Before the extinction of villenage, if lands had been given in

fee tail to a villein, the lord of the villein would have
acquired, by entry upon the lands, a base fee conterminous
with what would have been the duration of the fee tail if it
had remained in the villein and his heirs inheritable imder
the entail. (Co. Litt. 18 a.) If the lord had subsequently
enfranchised the villein, the enfranchisement would not
have affected the duration of the base fee. {Ibid, 111 a.)

(6) Similarly if, before the Naturalization Act, 1870 (33 & 34

Vict, c, 14), s. 2, lands had been given in fee tail to an
alien, and had been seized on the part of the crown after
office found, a base fee would have been vested in the
crown. If the alien had subsequently been made a denizen,
this would not have affected the duration of the base fee.
(Co. litt. 117 a.)

The last-mentioned Act enacts, that real and personal pro-
perty of every description may be taken, acquired, held, and
disposed of by an alien in the same manner in aU respects
as by a natural-bom subject.
Thislind of estate, therefore, endures so long only as there is in



Digitized by VjOOQIC



72 ON ESTATES.

existence either the donee in tail or any issue inheritable by force of
the entail.

It has also been suggested (Plowd. 557) that a base fee might
arise —

(7) Where the issue in tail was outlawed for felony, and in the

lifetime of his ancestor obtained a pardon. In such a case

it has been suggested that the heir of the donor could not

enter, because there was still living issue of the donee ; and

the issue could not lawfully enter xmder the entail, for

want of inheritable blood, which was not restored by the

pardon. In the case referred to by Plowden, the issue

entered ; and some thought that he had gained by his entry

a bajse fee conterminous with the entail, but others thought

that he had gained only a estate for his own life.

Base fees of any of the kinds above described are not properly said

to be liable to be determined, — ^which phrase properly refers to the

voluntary assertion of a hostile claim, — though they are determinable

upon the determination of the estate tail in which they had their

origin. There exists one other species of base fee, which is not only

determinable in the latter sense, but is, in the proper sense of the

phrase, liable to be determined : —

(8) Any assurance made by a tenant in tail which purports to

convey his whole estate, but is not effectual to bar the issue
in tail of their right, will create a base fee liable to be
determined by the entry of the issue in tail after the death
of the tenant in tail who made the assurance. {Vide mpra^
p. 69.)

An estate of the like duration with a base fee may arise as a
determinable fee, by an express limitation to A. and his heirs so long
as B. shall have heirs of his body. {Vide supra^ p. 61, No. 7.) But
it is conceived that, if B. is living at the date of the limitation, it
cannot take e£fect in possession until the death of B. ; because, nemo
est heres viventia. If this view is well founded, such a limitation
during the life of B. must be by way either of executory limitation
or of contingent remainder.

The authorities do not lend much countenance to this view. The
language of the "apprentice of the Middle Temple" in Plowden,
who was probably Plowden himself, implies, if it is to be construed
strictly, that an estate in possession might be created under such
a limitation during the life of B. But it is probable that Plowden's
attention was not directed to the point. The other authorities afiPord
no clear inference ; except, perhaps, the inference that the question
did not occur to them.



Digitized by VjOOQIC



BASE FEES. ^3

Before the 28tli August, 1833, a base fee would have merged in
the remainder or reversion in fee simple, if both estates were vested
in the same person without the existence of any intermediate estate*
(3 Prest. Conv. 240.) Whence it followed that if a tenant in tail,
having also an immediate remainder or reversion in fee simple, by
a fine vested in himself a base fee, the latter estate was destroyed by
merger, and all incumbrances affecting the remainder or reversion
were let in. They were technically sfidd to be accelerated.

Sect. 39 of the 3 & 4 Will. 4, c. 74, provides that under similar
circumstances, since the passing of the Act, the base fee shall not
merge, but be ipso facto enlarged into as large an estate as the tenant
in tail, with the consent of the protector, if any, might have created
by any disposition under the Act, if such remainder or reversion had
been vested in any other person.

It will be observed that the theory of base fees, as outlined in
Plowden's definition, assumes the truth of the proposition, that when
a base fee and a reversion in fee simple thereupon subsist at the same
time in the same land, (which can only be effected by operation of
law and not by mere limitation or conveyance,) the base fee descends
" from heir to heir ; " which language, since there is nothing to sug-
gest special heirs, must mean that it descends to the heirs general.

Preston has remarked that when an estate tail, even in special
tail, was turned to a base fee by a fine, the descent of the base fee
followed the common law, descending to the heir general, not to the
special heir. (1 Prest. Abstr. 372, 404.) The case cited by him
{Baker v. Willis, Oro. Car. 476, or Beaumont's Case, 9 Eep. 138)
hardly seems to establish this proposition ; which, however, seems to
follow from the fundamental rule, that the common law heir can be
displaced only by means of special limitations referring to the heirs
of the body ; because, in the case supposed, no such limitation existed.
The same doctrine seems necessarily to apply to all base fees which
arise without express limitation; and also to base fees arising by
express limitation, including base fees created by the alienation of
a tenant in tail in remainder, without the consent of the protector
of the settlement, under 3 & 4 Will. 4, o. 74, ss. 16 and 34 } unless
(which is of course not usual) a base fee so created should itself take
the form of a fee tail vested in another person. For every disposition
made by a tenant in tail must be subject to the rule above specified ;
and the descent of the base fee will depend upon the limitation oon«



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 10 of 53)