Common Recovery
Encyclopedia
A common recovery was a fictitious legal
proceeding in England
to enable an entail
ed estate in land (also called a fee tail
) to be converted into absolute ownership, fee simple
.
As a preliminary, there needed to be a conveyance of the land. The owner (in tail) of the land A conveyed it to someone else B (known as the tenant in precipe) to the intent that a third person C (known as the demandant) might sue for it. C accordingly issued a writ
against B. In court, B defended his right saying (correctly) that he had acquired it from A. A (now called the vouchee) was called upon to vouch for his right to the land. He alleged that he had acquired it from D (a person known as the common vouchee). D asked for time and failed to appear subsequently; alternatively, he dashed out of the court. In either case, the judgment was that C should recover the land, and that D should compensate B with land of equal value. However, D was chosen because he was a 'man of straw' with no property at all, so that the judgment against him was valueless, and it was never enforced. The result was thus that C recovered land in fee simple
, which A had owned in only fee tail; thus, the entail was barred.
Occasionally, it was also necessary to bar the rights of other persons E, such as trustees holding in trust for an equitable tenant in tail; in that case A alleged that he had acquired it from E and E alleged it had come from D, but the final result was the same.
The actual consequence of a common recovery depended on what the conveyance created a tenant in precipe said (usually in its final few lines). This might be:
At the end of the proceeding, the lawyers often had an exemplification of the proceedings prepared; this was a formal transcript of the proceedings in the monarch's name and sealed with a large seal, often mounted (to preserve it) in a tin box. Unless there was a whole manor
or an advowson
involved, the description of the land (which may be exaggerated) merely states the number of houses etc and acres of land, meadow, pasture etc and the townships or parish
es where it was. They are thus usually not particularly useful as historical sources. Since the purpose of the transaction cannot be known from the recovery, it is possible to say only that the vouchee dealt with the land.
In England and Wales, recoveries were abolished in 1833; instead a disentailing deed (a successor to that creating the tenant in precipe) was enrolled in Chancery
. Since 1926, entails can no longer exist as legal estate
s, only as equitable interests, and enrollment has become unnecessary.
Like Fine
s (or Final Concords), recoveries were fictitious proceedings to produce a genuine change. In this it differs from the fictitious form of the ejectment
, which was concerned with a genuine dispute, but dressed up in a fictitious form.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
proceeding in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
to enable an entail
Entail
Entail may refer to:* Fee tail, a term of art in common law describing a limited form of succession....
ed estate in land (also called a fee tail
Fee tail
At common law, fee tail or entail is an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner's heirs upon his death...
) to be converted into absolute ownership, fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
.
As a preliminary, there needed to be a conveyance of the land. The owner (in tail) of the land A conveyed it to someone else B (known as the tenant in precipe) to the intent that a third person C (known as the demandant) might sue for it. C accordingly issued a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
against B. In court, B defended his right saying (correctly) that he had acquired it from A. A (now called the vouchee) was called upon to vouch for his right to the land. He alleged that he had acquired it from D (a person known as the common vouchee). D asked for time and failed to appear subsequently; alternatively, he dashed out of the court. In either case, the judgment was that C should recover the land, and that D should compensate B with land of equal value. However, D was chosen because he was a 'man of straw' with no property at all, so that the judgment against him was valueless, and it was never enforced. The result was thus that C recovered land in fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
, which A had owned in only fee tail; thus, the entail was barred.
Occasionally, it was also necessary to bar the rights of other persons E, such as trustees holding in trust for an equitable tenant in tail; in that case A alleged that he had acquired it from E and E alleged it had come from D, but the final result was the same.
The actual consequence of a common recovery depended on what the conveyance created a tenant in precipe said (usually in its final few lines). This might be:
- to the use of A and his heirs (i.e. in fee simple)
- (if the transaction was in connection with a sale) to the use of C (in fee simple)
- (if the transaction was in connection with a mortgage) to the use of C provided that if A paid off the principal and interest then it should revert to A and his heirs.
- If the entail was barred so that the land could be resettled (on marriage or otherwise), it might be provided that a father and son could jointly appoint the property as they wished, or there might be detailed provisions as to the future interests in the land.
At the end of the proceeding, the lawyers often had an exemplification of the proceedings prepared; this was a formal transcript of the proceedings in the monarch's name and sealed with a large seal, often mounted (to preserve it) in a tin box. Unless there was a whole manor
Manorialism
Manorialism, an essential element of feudal society, was the organizing principle of rural economy that originated in the villa system of the Late Roman Empire, was widely practiced in medieval western and parts of central Europe, and was slowly replaced by the advent of a money-based market...
or an advowson
Advowson
Advowson is the right in English law of a patron to present or appoint a nominee to a vacant ecclesiastical benefice or church living, a process known as presentation. In effect this means the right to nominate a person to hold a church office in a parish...
involved, the description of the land (which may be exaggerated) merely states the number of houses etc and acres of land, meadow, pasture etc and the townships or parish
Parish
A parish is a territorial unit historically under the pastoral care and clerical jurisdiction of one parish priest, who might be assisted in his pastoral duties by a curate or curates - also priests but not the parish priest - from a more or less central parish church with its associated organization...
es where it was. They are thus usually not particularly useful as historical sources. Since the purpose of the transaction cannot be known from the recovery, it is possible to say only that the vouchee dealt with the land.
In England and Wales, recoveries were abolished in 1833; instead a disentailing deed (a successor to that creating the tenant in precipe) was enrolled in Chancery
Court of equity
A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.These courts began with petitions to the Lord Chancellor of England...
. Since 1926, entails can no longer exist as legal estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
s, only as equitable interests, and enrollment has become unnecessary.
Like Fine
Fine of lands
A fine of lands was a species of conveyance abolished in England in 1833. It took the form of a fictitious suit compromised or terminated by the acknowledgment of the previous owner that such land was the right of the other party...
s (or Final Concords), recoveries were fictitious proceedings to produce a genuine change. In this it differs from the fictitious form of the ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
, which was concerned with a genuine dispute, but dressed up in a fictitious form.