This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
The intention of X was probably to give an estate to A which should descend to the children and descendants of A for ever; but from the earliest times A, with the help of his lawyers, was continually finding some means of destroying the rights of his children and selling the whole fee simple. Thus the first construction put upon such a gift was as follows: -
I. At common law this was construed to be a grant of the fee simple conditional upon birth of issue. That is, if A had any issue born, he could immediately dispose of the whole fee simple.
This was obviously not the intention of the giver, X, and consequently a statute was passed in 1285 enacting that the intention of the giver should be observed, so that on the death of A the land should go to his issue, and if the issue should fail, then back to X or his heirs. Section II. of the statute was as follows: -
13 Ed. I. c. 1.
"The will (i.e. the intention) of the giver shall be from henceforth observed, so that they to whom the land is given . . . shall have no power to aliene (alienate) it; but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail."
Hence the estate of A was called an estate tail, because it was taille (Fr. cut down) to him for life and then to his issue. This statute was much disliked, and for nearly 100 years a tenant in tail was unable to destroy the rights of his issue and of the giver and his heirs.
One easy means of doing so would have been a collusive or fictitious action (similar to the Roman Law in jure cessio) which was already in use for conveying lands into mortmain and could have been used by A as follows. A friend of A would claim the land and bring an action in Court - (in Roman Law this was brought before the Praetor anywhere). A would not defend the action and the Court would give judgment that the land belonged to the friend. A judgment of a court of Law was always conclusive and binding on all parties and the result would be that the land would belong to the friend and he could convey it to A free from the entail.
But a statute passed in the same year as the statute De Donis provided that a collusive judgment could be rendered void, in all cases where the party impleaded (i.e. the defendant) makes default (b).
The lawyers were anxious to find some new method of defeating the statute. A judgment against A was no good, by reason of the last-mentioned statute; but their efforts were assisted by the three following decisions of the courts, which were not given for the purpose of assisting A to destroy his entail, but were used by the lawyers for that purpose.
(a) That A could sell the entailed land for an estate in fee simple provided he gave lands of equal value to his issue.
This obviously did no harm to the issue and the decision seems reasonable.
(b) That A could sell the entailed land for an estate in fee simple, provided judgment were given against A to give lands of equal value to his children.
This decision was based on the assumption that a judgment against A to give the lands was as good as the lands themselves, and this would not be unfair to the children provided A had other lands of equal value. The next decision goes a step further.
(b) 13 Ed. I. c. 32.
(c) That A might sell the entailed lands for an estate in fee simple, provided judgment were given against any one to give lands of equal value to A and his children.
After this judgment the object of the lawyers was to find some way in which a judgment could be given against some person other than A; i.e. against some person other than the defendant, for then A could safely get rid of the whole fee simple, in spite of the statute against collusive judgments.
Advantage was taken of the peculiar procedure of an action for the Recovery of Land. The procedure in an ordinary action for the recovery of land was as follows: -
B has bought land from C, who professed to be the owner, but D, a third party, now claims the land as his, and brings a writ of recovery claiming the land from B. B thereupon calls upon C to prove that the land really belonged to him (C) before he sold it to B, i.e. B "vouched C to warranty" If D could not prove his title, he lost the action. But if D could prove the better title he won the action, and B who had thus been defrauded by C had a right to judgment against C for the value of the lands.
The tenant in tail (A) therefore adopted the following procedure: -
A friend, D (called the Demandant), brought an action against A, and A pretended he had bought the land from C, and called upon C to warrant the title. C failed to do this, and judgment was given that the lands belonged to D in fee simple. C was usually a " man of straw," generally the Crier of the Court, and having no lands or money, was willing to allow a judgment to be given against him to give lands of equal value to A and his children. Later it was found inconvenient that the action should be brought against A himself, and consequently a further step was introduced. A conveyed his life interest (which he could dispose of freely) to another friend T, and the action was brought by D against T. T was called the tenant to the praecipe, because he was introduced for the purpose of having the writ of praecipe (which commenced an action of Recovery) served on him. T having really obtained the land from A, vouched him to warranty, hence the full procedure was as follows: -
IV. The Common Recovery. - D (the demandant) brought an action of recovery against T (the tenant to the praecipe); T vouched A (the tenant in tail) to warranty; A admitted that he had conveyed the land to T, and A then vouched C to warranty. C (the "common vouchee") admitted that he had sold the land to A (which was not true in fact), and "craved leave to imparl" with A (i.e. permission to consult with him outside the court). C then left the court and failed to appear again.. Judgment was given by default (i.e. in the absence of the chief defendant), that the land belonged to D in fee simple and that C must give lands of equal value to A and his issue. D afterwards conveyed the fee simple to A and his heirs. The effect of this was to bar the entail, i.e. to turn the estate tail into a fee simple; and it destroyed the rights, not only of A's children, but also of the donor (X) and his heirs. The first reported case in which a recovery was held to have this effect was Taltarum's case (c).
V. Another mode of barring the entail was a fine. D (as before) brought an action of recovery against A, and A proceeded to defend the action. When the proceedings were started, both parties agreed to compromise the action on the terms that D was to have the land and he was to pay A certain money. This compromise was entered on the rolls of the court and put an end (finem) to the proceedings. The compromise being entered on the rolls of the court was conclusive against A and his issue.
The effect of fines varied from time to time. At one time fines had to be proclaimed in court, and would then bar A's
(c) 2 Blackstone, 117.
issue if they did not claim within five years; later the issue were barred immediately after the proclamation (d).
A fine did not bar the rights of the donor and his heirs, to take the land on failure of A's issue, and therefore the estate which A obtained and which he could sell to another was an estate which would last so long as A and his issue lived. This was called a Base fee.
The reader may wonder why any one should use or "levy " a fine, when the effect of a recovery was so much more complete. The reason was this. We have seen that an action of recovery could not be brought except against the person in possession of the freehold; but a fine could be levied whether A was in possession of the freehold or not. Thus, suppose the land had been granted by X to F (the father of A) for his life and then to A and the heirs of his body. A not being in possession during the life of F could not "suffer" a recovery; but he could levy a fine and bar his own issue. If, however, F would agree to act as a defendant in a Recovery, F and A together could bar not only A's issue but also X and his heirs. This distinction is most important as its effect survives at the present day.
1. Was a collusive action brought to judgment.
1. Was a collusive action compromised.
2. The tenant in possession of the freehold must be a party.
2. The tenant in possession of the freehold need not be a party.
3. It barred the rights of all parties, including the giver of the estate tail and his heirs.
3. It barred the rights of the issue of the tenant in tail only (i.e. of all persons taking under the gift of estate tail).
(d) See further, "Williams on Real Property," 20th Ed., p. 99.
VI. Fines and recoveries were abolished in 1833 by the Act for the Abolition of Fines and Recoveries (e).