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it by the court in a decision which has since been known as the rule in Shelley's Case.

SECTION 81. THE RULE IN SHELLEY'S CASE.

The two most famous statements of the rule in Shelley's Case are those by Preston and Kent which were as follows: a recovery with single voucher,

Prest. Conv., 126; 1 Prest. see Fearn. Post. Works, p. 336;

Abst., 394, 395. if against the tenant of the free

With respect to the effect of a hold, and he vouch over the

recovery, it may be further tenant in tail, and the tenant

observed, that the recoverer, in tail vouch over the common

generally speaking, gains á vouchee, it is called a recovery

clear and absolute fee in the with double voucher; and so on,

premises recovered. But where according to the number of per

the person by whom the estate sons vouched. And when an

tail was created, had a deterinta'il is to be barred, it is al

minable or defeasible fee, the ways proper, for the reasons

recovery cannot do more than before mentioned, to suffer a re

acquire the ownership for the covery with a double voucher.

whole of that determinable or Watk. Conv., 134. Such a re

qualified fee. 1 Prest. Conv., covery, in which the tenant in

141. And when a tenant of a tail is vouched, and is vouched

remote estate tail suffers & over, will not only bar an ac

common recovery, in which he tual estate tail, of which he is

is vouched, and vouches over, seised, but it will bar all estates

the effect of this recovery will tail which have been devested,

be merely to bar his own estate discontinued, previously

tail, and the remainders and aliened. Šalk., 571; Brook.

reversions expectant thereon Tail, pl. 32. And it may bar

(3 Co., 6, 8 T. R., 10), and all several estates tail, or the right

conditions and collateral limitato several estates tail, by one

tions annexed to his estate; it and the same operation. Bax

will not affect prior estates tail, ton vs. Lever, Cro. Eliz., 388, 1

or any other prior estates. Ves., 253. It will also bar all

Smith vs. Clifford, 1 T. R., 738. remainders and reversions ex

And the fee acquired by such pectant thereon, even though

recovery may be barred by a the estate tail has been previ

recovery afterwards suffered ously barred by a fine with

by the tenant of a prior estate proclamations levied by the

tail. 1 Prest. Abst., 394. So tenant in tail. Sheffield vs. Rat

when the entail is of a subject cliffe, 2 Rol. Rep., 418. And

which has a limited duration, the better opinion seems to be,

as a rent-charge, created de that a recovery suffered by the

novo, and limited for an estate issue in tail after the death of

tail, without any remainders the ancestor, and after a fine

over, the recovery of tenant in with proclamations levied by

tail cannot enlarge the estate the ancestor, which has effectu

beyond the period prescribed ally barred the estate tail, will

for its duration. 1 Prest. bar all remainders and rever

Conv., 140; Ante, vol. 1, p. sions, which are, or were ex

448 (n. F). It is also obserypectant on the estates tail.

able, that the estate recovered Fearn. Post. Works, 442; 1

is not subject to any charges mainder, 2 Rol. Abr., 394; or his own estate, nor any es

or

re

"In any instrument, if the freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs but to those of the recoveree.

make a good tenant to the Hence it is preferable, in some

præcipe, 2 Rol. Abr., 394, pl. 4; cases, to a fine, as a fine lets in

Robinson v. Cumming, Cas. the incumbrances of the an

Temp. Talb., 114; Atk., 473; cestors as well as those of the

but the wife will not be barred cognizers. Watk., 134, Ante,

unless she is vouched. 1 Prest. p. 610 (n. 1). On the other

Conv., 56. Where the wife hand, a fine is, in some in

has the freehold by way of stances, preferable to a recov

separate estate, she is to be conery, as the former operates as

sidered as a feme sole, and alone an estoppel by the statute,

is competent to make a good where a recovery would not

tenant of the freehold. 1 estop. Pig. Rec., 32, 34, 55;

Prest. Conv., 34, 36. A recov2 Cru., 271; Plowd., 515, Ante,

ery, with the concurrence of p. 610 (n. 2). But no tenant

the freeholder, may be suffered in tail can, by suffering a com

by a tenant in tail, either in mon recovery, bar any charges

possession, reversion, or which are an incumbrance on

by a person who has the right tates derived out of his own

of an estate tail once vested, estate tail. On the contrary,

and which has been devested he may give stability to these

or discontinued, Maxwell's estates and charges, by suffer

case, 2 Plowd., 8 b. 3 Co., 6; ing a common recovery. Good

Sheffield v. Ratcliffe, Hob., 334; right vs. Mead, 3 Burr., 1703;

Lincoln College case, 3 Co., 38 Stapilton vs. Stapilton, 1 Atk.,

b.; or, as before observed, by 2; 1 Prest. Conv., 142.

the heir in tail, after the estate With respect to the persons

tail has been barred by fine, or who may suffer recoveries.

the heirs are bound by warA recovery may be suffered by

ranty. Supra, p. 614; Barton a tenant in fee-simple, in order

v. Leaver, Cro. Eliz., 388. But to strengthen the title, Watk., a person who has a contingent 135; but it will not bar an

or executory interest in tail, as executory devise or springing

under an executory devise, or a use annexed to that estate.

springing or shifting use, canPells vs. Brown, Cro. Jac., 590;

not suffer a common recovery Palm., 131; 2 Fearn., Ex. Dev.,

with effect, so as to bar either 66, 69; Pig. Rec., 134; though

his own interest (except by a recovery by tenant in tail will

way of estoppel), or the issue bar an executory devise or

in tail, or those in remainder springing use annexed to his

or reversion; nor can the issue estate. Page_v. Hayward, 2

in tail suffer a common recovSalk., 570; 1 Prest. Čonv., 3.

ery with effect in the lifetime So a feme covert may convey

of the ancestor. Apprise v. her freehold and inheritance by

Apprise, 1 Keb., 391; 1 Prest. suffering a recovery; and no

Conv., 142; 1 Prest. Abst., 395. fine is necessary on account of

The alienee of a tenant in tail, coverture, when a recovery is

or the assignee of the crown, suffered. 1 Prest. Conv., 34.

claiming the estate of a tenant The husband has the freehold

in tail under an attainder for in right of his wife, and he alone

treason, cannot, in any case, may convey the freehold to

bar the estate tail or the retenant in tail who is vouched. · Warvelle on Real Property, 269. 6 Waryelle on Real Property, pp.

of his body, he takes a fee-tail; if to his heirs, a feesimple.” 1

The rule as stated by Chancellor Kent was as follows:

“When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 5

The application and extent of the rule has been thus expressed in Coke's Institute:

“The rule mentioned in the text is usually called the rule in Shelley's case. As this rule is intimately connected with the doctrine contained in the present chapter, it may be desirable in this place to consider the manner in which it is applied in the construction.-1st. Of deeds. 2dly. Of surrenders of copyholds; and 3dly, of devises.

“1st. Of the application of the rule in Shelley's case in the construction of deeds. Where an estate was

a

mainders, by suffering a common recovery: Hob., 259. And the right of suffering a common recovery is a privilege personal to the donee in tail, and his heir in tail, when heir; therefore a corruption of the inheritable blood of the issue, by the attainder of their ancestor for treason, will preclude their right to suffer a common recovery so as to bar the remainders. Jenk. Cent., 251, Hob., 345. And attainder of tenant in tail creates a disability to suffer a common recovery, Barton's case, 2 Rol. Abr., 394; Jenk. Cent., 250;

though between the crime and attainder, it should seem, that

common recovery may be suffered. Stevens v. Winning, 2 Wils., 219; 1 Prest. Conv., 140. But a recovery suffered by a tenant in tail, being an alien, will bar the remainders expectant on his estate. 4 Leon., 84. It may be further observed, that a recovery will be good only for that portion of estate which is vested in the

268-269.

conveyed to A. for life, remainder to the heirs, or heirs of the body of A., if the construction had been made according to the strict meaning of the words, A would have taken only an estate for life, and the remainder to the heirs, etc., of A. would have been considered as words of purchase, giving a contingent remainder to the heirs, etc., of A., according to the rule of law, that nemo est hæres viventis; but such a construction would have been attended with these inconveniences: 1st. The lord of the fee would have been deprived of the wardship and marriage of the heir, because, in that case, the heir would have taken as a purchaser, without claiming anything from his ancestor by descent. 2dly. The remainder to the heirs, or heirs of the body, being contingent until the death of the tenant for life, the inheritance would have been in suspension or abeyance: which was never allowed but in cases of absolute necessity; because the abeyance of the inheritance created a suspension of various operations of law, particularly of the remedies for the recovery of land by real actions. And 3dly. If the remainder, in those cases, had been construed to be contingent, no alienation could have taken place in the life-time of the ancestor. To obviate which inconveniences, was the origin of the rule of law, laid down in Shelley's case, viz., that 'when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, that always, in such cases, the heirs' are words of limitation of the estate, and not words of purchase,' 1 Co., 104 a. Whence it follows, that such remainder is immediately executed in possession, in the ancestor so taking the freehold, and is not contingent or in abeyance. Bl. Arg. Harg. Tracts, 498, 510; 4 Cru. Dig., 470, 1. Serjeant Rolle, indeed, takes a distinction respecting this rule, by saying, that where the freehold is so limited to the ancestor, and a mediate remainder to his right heirs, that all the intermediate estates between that and the limitation to his heirs, as well as his own estate, may determine during his life, in that case the limitation to his heirs is in abeyance, because he can have no heir to take the remainder. 2 Rol. Abr., 418. But Mr. Fearne has controverted this distinction, and shown that the possibility of the freehold's determining in the life-time of the ancestor, who takes it, does not prevent the subsequent limitation to his heirs from attaching in himself. Fearn. Cont. Rem., 32; Et vid. Curtis vs. Price, 12 Ves., 89. With respect to the mode in which mediate limitations are vested, it is observable, that where the subsequent limitation is immediate, it then becomes executed in the ancestor, forming by its union with his particular free hold one estate of inheritance in possession; but where such limitation is mediate, it is then a remainder vested in the ancestor, who takes the freehold, not to be executed in possession, until, the determination of the preceding mesne estates. Fearn. Cont. Rem., 38. And where the limitations intervening between the first estate for life, and the limitation to the heirs of the body, are contingent, the estate for life is not merged, because the intervening limitations would be thereby destroyed; but the two limitations are united and executed in the ancestor only, until such time as the intervening limitations become vested; and then open and become separated, in order to admit such intervening limitations as they arise. Lewis Bowles's case, 11 Co., 79; Fearn. Cont. Rem., 42.

“With regard to joint and several limitations, Mr.

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