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.
By the same Act an entail may now be barred by a deed enrolled within six months in the Central Office of the Supreme Court.
The old distinction between the powers of a tenant in possession and one not in possession is still retained as follows: -
If the tenant in tail is in possession (f), he can bar the entail without the consent of any one, and he can thereby bar the rights of all persons, including the donor and his heirs.
If the tenant in tail is not in possession, he cannot bar the whole entail by deed unless he gets the consent of the "Protector of the Settlement" (g).
The protector of the settlement is a new officer created by the Act to take this place of the father (F) in our last example. He is the tenant of the first life estate under the document creating the entail, or any other person or persons (not more than three in number) who are appointed to be protectors of the settlement by the document which creates the entail.
Thus (as in the last example), land is granted by X to F for life with remainder to A and the heirs of his body. F is the protector, and A cannot bar the claims of X and his heirs without the consent of F (h).
(e) 3 & 4 Will. IV. c. 74
(f) Except, possibly, where the settlement has expressly appointed a protector.
(g) Except where the life estate was created by a different deed - for then the life tenant is not the protector.
(h) Note on 2nd reading. - A tenant by the curtesy may be protector. If there is no protector, the entail may be barred without any consent, lie Hughes and the London and North Western Railway Act, 1906.
If a tenant in tail not in possession bars the entail by deed enrolled without the consent of the protector, he bars his own issue only, and creates a base fee.
The deed in this case has therefore the same effect as a fine.
Thus, in the last example, if A executed a deed enrolled without the consent of F, and thereby conveyed the land to C, C would get merely a base fee, that is an estate which would last as long as A and his issue lived, but on the death of A and all his issue the land would revert to X or his heirs.
Thus at the present day a gift to "A and the heirs of his body" creates an estate tail, which will descend strictly to the descendants of A; but A can at any time by a deed enrolled turn his estate into a fee simple.
It is thus impossible to tie up lands in a family for ever.
The most that can be done in this direction is effected by a settlement, which is in outline as follows: -