This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
After the statute Be Donis began to operate by fixing the land in perpetuity in the line of issue named in the grant, the inconveniences of the restriction imposed under the authority of the statute were strongly felt, farmers were deprived of their leases, creditors were defrauded of their debts, and latent entails were frequently produced to overthrow titles, while treason, it is said, was encouraged by the fact that the estate could not be forfeited for a period longer than the tenant's life. All classes of the community, except the great land owners, were thus interested in securing a repeal or modification of the statute, but, though repeated attempts were made in parliament to this end, they were always defeated.6 Finally the judges, in pursuance of the policy which the courts have always favored, of promoting and perserving freedom of alienation, decided that a common recovery suffered by the tenant in tail was an effectual method of conveying the land, the power of alienation being thus restored. Recoveries and fines, which latter were subsequently also adopted for the purpose, were collusive and fictitious proceedings, brought against the tenant in tail, in which he suffered judgment to go against him, or a compromise was effected. The legality of barring an estate tail by a recovery is said to have been first recognized in the "Taltarum's Case" (12 Edw. IV., A. D.
4. Co. Litt. 19b, and Hargrave's note, 120; 2 Blackst. Comm. 113; Challis, Real Prop. 43, 61.
5. Co. Litt. 20a. Hargrave's note, 120; Gray, Perpetuities, Sec. 647 note; 2 Jarman, Wills, 1366, and note.
Terms for years and personal chattels may, however, be in effect entailed for a limited period by a limitation to one for life, with an executory interest in his issue living at his death. See Co. Litt. 20a, Hargrave's note.
6. Mildmay's Case, 6 Coke, 40a quoted in Digby, Hist. Real Prop. 251.
1473), though the matter had probably for some time engaged the attention of the judges.7
These modes of barring entails were in general use in England till they were abolished by a statute which expressly authorized a tenant in tail to alienate the land in fee simple, or otherwise, and thus bar the expectations of his issue, and also of the owner of the reversion or remainder.8 In this country, fines and recoveries were recognized as a mode of barring entails in several of the colonies and states.9 But at a quite early date statutes were passed in several states authorizing the tenant in tail to bar the entail by a conveyance, that is, to convey the land as if he had an estate in fee simple therein.10 And in at least one state it has been decided that, even apart from statute, the tenant in tail has the right to bar the entail by conveyance, as a substitute for the right which he formerly had to bar the entail by suffering a recovery.11
The question whether a statute thus enabling the tenant in tail to bar the entail by a conveyance
7. 2 Blackst. Comm. 117; Digby, Hist. Real Prop. 250 et seq.; Chal-lis, Real Prop. 302 et seq.; 4 Kent, Comm. 14.
The pleadings in T'altarurn'ri Case (Year Book, 12 Edw. IV., pl 25, f. 19) are given by Mr. Digby (pages 253-255), and it is explained, so far as capable of explanation, by Mr. Challis.
8. 3 & 4 Wm. IV. c. 74 (1833.); Digby, Hist. Real Prop. 252.
9. See Carroll's Lessee v. May-dwell, 3 Har. & J. (Md.) 292; Haw-ley v. Inhabitants of Northampton, 8 Mass. 3, 5 Am. Dec. 66; Frost v. Cloutman, 7 N. H. 9, 26 Am. Dec. 723; Roseboom v. Van Vechten, 5 Denio (N. Y.) 414; Lyle v. Richards, 9 Serg. & R. (Pa.) 322.
10. Stimson's Am. Stat. Law Sec. 1313 (c) 1 Sharswood & Budd,
Leading Cas. Real Prop. 109 et seq.
See Croxall v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572; Jones v. Jones, 2 Har. & J. (Md.) 281; Riggs v. Sally, 15 Me. 408; Colla-more v. Collamore, 158 Mass. 74, 32 N. E. 1034; Gilpin v. Williams, 25 Ohio St. 283; Lawrence v. Lawrence, 105 Pa. St. 335; Jillson v. Wilcox, 7 R. I. 515.
Even though the tenant in tail has no authority to bar the entail by conveyance, a conveyance by him creates in the grantee, not a life estate but a base fee, defeasible on the tenant's death, at the option of the issue. 1 Preston, Abstracts, 383; Challis, Real Prop. 322; Whiting v. Whiting 4 Conn. 179; Waters v. Margerum, 60 Pa. St. 39.
11. Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131.
Can properly apply to an estate in fee tail which existed prior to its passage, has been but seldom the subject of judicial discussion. In two states, however, such a statute has been regarded as unconstitutional in so far as it may operate to divest a pre-existing remainder or reversion on an estate tail.12 The validity of such a statute may properly, it has been suggested, be regarded as dependent on whether, even before its passage, there was a recognized right to bar an estate tail by common recovery or otherwise, with the result that the reversioner or remainderman, while he had technically speaking an estate, had in fact merely a hope or expectation of actually enjoying the possession of the property.13