Since the passing of this statute, an estate given to a man and the heirs of his body has been always called an estate tail, or, more properly, an estate in fee tail (feudum talliatum). The world. fee (feudum) anciently meant any estate feudally held of another person (b); but its meaning is now confined to estates of inheritance, - that is, to estates which may descend to heirs; so that a fee may now be said to mean an inheritance (c). The word tail is derived from the French word tailler, to cut, the inheritance being, by the statute De Donis, cut down and confined to the heirs of the body strictly (d); but, though an estate tail still bears a name indicative of a restriction of the inheritance from any interruption in its course of perpetual descent from father to son, we shall find that in fact the right to establish such exclusive perpetual descent has long since been abolished. When the statute began to operate, the inconvenience of the strict entails, created under its authority, became sensibly felt: children, it is said, grew disobedient when they knew they could not be set aside; farmers were deprived of their leases; creditors were defrauded of their debts; and innumerable latent entails were produced to deprive purchasers of the land they had fairly bought; treasons also were encouraged, as estates tail were not liable to forfeitures longer than for the tenant's life (e). The nobility, however, would not consent to a repeal, which was many times attempted by the commons (f), and for about two hundred years the statute remained in force. At length the power of alienation was once more introduced, by means of a quiet decision of the judges, in a case which occurred in the twelfth year of the reign of King Edward IV. (g). In this case, called Taltarum's case, the destruction of an entail was accomplished by judicial proceedings collusively taken against a tenant in tail for the recovery of the lands entailed. Such proceedings were not at that period quite unknown to the English law, for the monks had previously hit upon a similar device, for the purpose of evading the statutes of Mortmain, by which open conveyances of lands to their religious houses had been prohibited; and this device they had practised with considerable success till restrained by act of parliament (h). In the case of which we are now speaking, the law would not allow the entail to be destroyed simply by the recovery of the lands entailed, by a friendly plaintiff on a fictitious title; this would have been too barefaced; and in such a case the issue of the truant, claiming under the gift to him in tail, might have recovered the lands by means of a writ of forme-do a (i), so called because they claimed per formam doni, according to the form of the gift, which the statute had declared should be observed. The alienation of the lands entailed was effected in a more circuitous mode, by judicial sanction being given to the following proceedings, which afterwards came into frequent and open use, and had some little show of justice to the issue, though without any of its reality. The tenant in tail, on the collusive action being brought, was allowed to bring into Court some third person, presumed to have been the original grantor of the estate tail. The tenant then alleged that this third person had warranted the title; and accordingly begged that he might defend the title which he had so warranted. This third person was accordingly called on; who, in fact, had had nothing to do with the matter; but, being a party in the scheme, he admitted the alleged warranty, and then allowed judgment to go against him by default. Whereupon judgment was given for the demandant or plaintiff, to recover the lands from the tenant in tail; and the tenant in tail had judgment empowering him to recover a recompence in lands of equal value from the defaulter, who had thus cruelly failed in defending his title (k).
Statnte De Donis.
(z) Ante, p. 36.
(a) Stat. 13 Edw. I. c. 1, called also the Statute of Westminster the Second.
(b) Bracton, lib. 4, fol. 263 b, par. 6; Selden, Tit. of Honour, part 2, c. 1,8. 23, p. 332; Wright's Tenures, p. 5.
Inconvenience of strict entails.
Taltarum's case, entails destroyed.
(c) Litt. s. 1; Co.Litt. 1 b, 2 a; Wright's Tenures, p. Hi).
(d) Litt. s. 18; Co. Litt. 18 b, 327 a, n. (2); Wright's Tenures, 187; 2 Black. Com. 112.
(e) 2 Black. Com. 11G. (f) Cruise on Recoveries. (g) Taltarum's case, Year Book, 12 Edw. IV. 19.
(h) Statute of Westminster the Second, 13 Edw. I. c. 32; 2 Black. Com. 271.
(i) Litt. ss. 688, 690. (k) Co. Litt. 361 b; 2 Black. Com. 358.
If any such lands had been recovered under the judgment, they would have been held by the tenant for an estate tail, and would have descended to the issue, in lieu of those which were lost by the warrantor's de-fault (l). But the defaulter, on whom the burden was thus cast, was a man who had no lands to give, some man of straw, who could easily be prevailed on to undertake the responsibility; and, in later times, the crier of the Court was usually employed. So that, whilst the issue had still the judgment of the Court in their favour, unfortunately for them it was against the wrong person; and virtually their right was defeated, and the estate tail was said to be barred. Not only were the issue barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on failure of issue, had his reversion barred at the same time (m). So also all estates which the donor might have given to other persons, expectant on the decease of the tenant in tail without issue, (and which estates are called remainders expectant on the estate tail,) were equally barred. The demandant, in whose favour judgment was given, became possessed of an estate in fee simple in the lands; an estate the largest allowed by law, and bringing with it the fullest powers of alienation, as will be hereafter explained: and the demandant, being a friend of the tenant in tail, of course disposed of the estate in fee simple according to his wishes.