27. An estate tail endures until the particular heirs named in the gift are exhausted, and then reverts to the donor, unless it is sooner barred, which may be:
(a) By common recovery (obsolete)..
(b) By fine (obsolete).
(c) By deed, in most states.
Barring Estates Tail-by Common Recovery.
After the statute de donis had been in force about 200 years,43 a method of evading it and of barring the entail was devised, called a "common recovery." This consisted of a collusive suit, brought by the intended purchaser, called the "demandant," under a claim of paramount title against the tenant in tail The latter did not defend, but claimed that his grantor had warranted the title to the lands, and asked that he be called upon to defend the suit. This was termed "Vouching to warranty."44 The vouchee, who
39 Amesbury v. Brown, 1 Ves. Sr. 477; Chaplin v. Chaplin, 3 P. Wms. 235. But see Burgess v. Mawby, 1 Turn. & R, 176.
40 Kennedy v. Kennedy, 29 N. J. Law, 1S5; Smith's Appeal 23 Pa. St. 9. See post, p. 83.
41 Voller v. Carter, 4 El. & Bl. 173. See post, p. 73. Before the statute the second husband could have curtesy. Anon, Fitzh. Abr. "Fonnedon," 66. But this was changed by the statute.
42 Wiscot's Case, 2 Coke, 60a; Challis, Real Prop, c 10.
43 The house of lords had defeated all attempts to repeal the statute. See Mildmay's Case, 6 Coke, 40a; 2 Bl Comm. 116.
44 The proceeding was usually a more complicated one, called a "recovery was a mere man of straw, suffered default to be entered against him, thus admitting the warranty. Then the lands were judged to belong to the demandant, and judgment was entered against the vouchee that he reimburse the tenant in tail with lands of equal value, according to the doctrine of warranty.45 The entail was held to attach to this land, so the heirs and remainder-men would lose nothing; but in fact the vouchee was always a man of no means, and had not in fact warranted the estate to the defendant, but was a third person, called in to carry out the fiction, and the judgment against him was worthless. The efficacy of this proceeding to bar an estate tail was first recognized in the now famous Taltarum's Case.46 A common recovery, being suffered, not only cut off the issue in tail, but destroyed all remainders or reversions as well, and thus effectually put an end to entailed estates.47 That is, the tenant in tail, after Taltarum's Case, always had power to suffer a recovery, and no condition or restriction in. the deed of gift could be devised which could prevent it48
Same - By Fine.
Estates tail might also be barred by another kind of collusive action called a "fine."49 Fines were actions for the recovery of lands on a claim of title, which were compromised by the parties with leave of the court, and the judgment record entered in the case became the record of title. The effect of a fine was to bar the issue in tail, but not the remainder-man or reversioner.50 with a double voucher." For further details as to recoveries, see 2 Bl Comm. 357; Challis, Real Prop. 249.
45 As to the origin of warranty, see Digby, Hist Real Prop. 80, note l.
46 Y. B. 12 Edw. IV. 19.
47 2 Bl Comm. 361. A recovery could be suffered only by one in possession as tenant in tail or with the consent of the person in possession. 1 Dembitz, Land Tit 116.
48 Mary Portington's Case, 10 Coke, 35b; Dewitt v. Eldred, 4 Watts & S. (Pa.) 415. And see Waters v. Margerum, 60 Pa. St 39; Doyle v. Mullady, 33 Pa. St 264; Elliott v. Pearson, 8 Watts & S. (Pa.) 38; Hall v. Thayer, 5 Gray, (Mass.) 523.
49 The statute de donis declared that fines should have no effect on estates tail, but this was changed by the statutes of 4 Hen. VII c 24, and 32 Hen. VIII. c. 36.
50 Seymor's Case, 10 Coke, 95b. They would also be barred unless they
In many states it is now provided by statute that estates tail may be barred by deed.*