When the estate tail is preceded by a life interest.
The concurrence of the first tenant for life required.
His consent required to bar remainders and reversions of gestation is also included, if tataon exist; Cadell v. Pal mer, 7 Bligh, N. S. 202. (k) Cruise on Recoveries, 21.
See however stat. 14 Geo. II. c. 20.
(l) See First Report of Real Property Commissioners, p. 82.
The above-mentioned right of a tenant in tail to bar the entail is subject to a few exceptions; which, though of not very frequent occurrence, it may be as well to mention. And, first, estates tail granted by the crown as the reward for public services cannot be barred so long as the reversion continues in the crown. This restriction was imposed by an act of parliament of the reign of Henry VIII. (s), and it has been continued by the act by which fines and recoveries were abolished (t), and by the act to facilitate leases and sales of settled estates (u), so far as regards any sale or lease beyond the term of twenty-one years. There are also some cases in which entails have been created by particular acts of parliament, and cannot be barred.
The issue may be barred without protector's consent.
Estates tail granted by the crown as reward of public service-.
(m) Stat. 3 & 4 Will. IV. c. 74,
42-47. (n) Sects. 34, 35. (o) Sect. 22
(p) Sect. 32. (q) Sects. 36, 37. (r) See Sugd. Vend, and Pur. 593, 11th ed.
Again, an estate tail cannot be barred by any person who is tenant in tail after possibility of issue extinct. This can only happen where a person is tenant in special tail. For instance, if an estate be given to a man and the heirs of his body by his present wife; in this case, if the wife should die without issue, he would become tenant in tail after possibility of issue extinct (v); the possibility of his having issue who could inherit the estate tail would have become extinct on the death of his wife. A tenancy of this kind can never arise in an ordinary estate in tail general or tail male; for, so long as a person lives, the law considers that the possibility of issue continues, however improbable it may be from the great age of the party (x). Tenants in tail after possibility of issue extinct were prohibited from suffering common recoveries by a statute of the reign of Elizabeth (y), and a similar prohibition is contained in the act for the abolition of fines and recoveries (z). But, as we havc before remarked (a), truancies in special tail arc not now common. In modern times, when it is intended to make a provision for the children of a particular marriage, estates are given directly to the unborn children, which take effect as they come into existence; whereas in ancient times, as we shall hereafter see(b), it was not lawful to give any estate directly to an unborn child.
Tenant in tail after possibility of issue extinct.
(s) Stat. 34 & 35 Hen. VIII. c. 20; Cruise on Recoveries, 318.
(t) Stat. 3 & 4 Will. IV. c. 74, s. 18; Duke of Grafton's case, 5 New Cases, 27.
(u) Stat. 19 & 20 Vict. c. 120, s. 42.
(v) Litt. sects. 32, 33; 2 Black. Com. 124.
(x) Litt. sect. 34; Co. Litt. 40 a; 2 Black. Com. 11'.".; Jee v. Audley, 1 Cox, 824.
(y) Eliz. c. 8.
The last exception is one that can only arise in the case of grants and settlements made before the passing of the Act for the Abolition of Fines and Recoveries; for the future it has been abolished. It relates to women who are tenants in tail of lands of their husbands, or lands given by any of his ancestors. After the decease of the husband, a woman so tenant in tail ex provisione viri was prohibited by an old statute (c) from stiffering a recovery without the assent, recorded or inrolled, of the heirs next inheritable to her, or of him or them that next after her death should have an estate of inheritance, (that is, in tail or in fee simple,) in the lands: she was also prohibited from levying a fine under the same circumstances by the statute which confirmed to fines then: force in other cases (d). This kind of tenancy in tail very rarely occurs in modern practice, having been superseded by the settlements now usually made on the unborn children of the marriage.
It is important to observe that an estate tail can only be barred by a proper deed, duly inrolled according to the act of parliament by which a deed was substituted for a common recovery or fine. Thus every attempt by a tenant in tail to leave the lands entailed by his will (e), and every contract to sell them, not completed in his lifetime by the proper bar (f), will be null and void as against his issue claiming under the entail, or as against the remaindermen or reversioners, (that is, the owners of estates in remainder or reversion,) should there be no such issue left.
Tenant in tail ex provisione ciri.
An estate tail cannot be barred by will or contract.
(z) 3 & 4 Will IV.c.74, s .18. (a) Ante, p. 34. (b) See the Chapter on a Contingent Remainder.
(c) 11 Hen. VII. c. 20. (d) Stat. 32 Hen. VIII. c. 3G, s.2.
A tenant in tail may cut down timber for his own benefit, and commit what waste he pleases, without the necessity of barring the entail for that purpose (g). A tenant in tail was moreover empowered by a statute of Henry VIII. (h) to make leases, under certain restrictions, of such of the lands entailed as had been most commonly let to farm for twenty years before; but such leases were not to exceed twenty-one years, or three lives, from the day of the making thereof, and the accustomed yearly rent was to be reserved. This power was however of little use; for leases under this statute, though binding on the issue, were not binding on the remainderman or reversioner (i), and consequently had not that certainty of enjoyment which is the great inducement to the outlay of capital, and the consequent improvement of landed property; and this statute has been recently repealed (k). The Act for the Abolition of Fines and Recoveries now empowers every tenant in tail in possession to make leases by deed, without the necessity of inrolment, for any term not exceeding twenty-one years, to commence from the date of the lease, or from any time not exceeding twelve calendar months from the date of the lease, where a rent shall be thereby reserved, which, at the time of granting Buch lease, shall be a rack-rent, or not less than five-sixth parts of'a rack-rent (l).