Machil against Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | Court of the Queen's Bench |
English Reports Citation: 87 E.R. 1068
IN THE QUEEN'S BENCH
[18] case 33. machil agaiiist clerk. Easter Term, 12 Will. 3, Roll 342. If a tenant in tail covenant to stand seised of the estate tail to the use of himself for life, with remainder to the use of his son in tail, and afterwards suffer a common recovery, in which he is tenant to the pracipe, with single voucher to other uses than those in the covenant to stand seised, the recovery is good, and bars the issue in tail; for the covenant to stand seised made no alteration in the estate-tail, but conveys a base fee, defeasable only by the entry of the issue in tail.-S. C. Holt, 615. S. C. 2 Salk. 619. S. C. Com. Rep. 119. S. C. 2 Ld. Ray. 778. S. C. 11 Mod. 19. Error in this Court, on a judgment given in the Court of Common Pleas, where the question, upon a special verdict in ejectment, was this : A tenant in tail, in consideration of the marriage of his son, covenants to stand seised to the use of himself for life, remainder to the use of his son and heir, and the heirs-male of his body by his intended wife, with several remainders over; and after he suffers a recovery, in which he himself is tenant to the prcecipe, and vouches over the common vouchee; which recovery was to other uses than those mentioned by the covenant. 7MOD.1*. TRINITY TERM, 1 QUEEN ANNE. IN B. R. 1069 So the question was, whether the tenant in tail, notwithstanding the covenant to stand seised, continued seised in tail, for then the recovery was good, otherwise it could not be good in this case, he coining in as tenant to the prcecipe. Williams here argued, that the covenant was void.-Estates-tail owe their being to the Statute de Donis, which is the only law that restrains conveyances of them at this day; and the care of that statute regards only the issue and those in reversion or remainder, and does in no way extend to the party himself during his life: and in favour of solemn conveyances, the issue himself, and those in reversion and remainder, are put to their action in case of feoffments and fines by a tenant in tail, and in all cases the tenant himself is bound by his alienation or conveyance as well since as before the statute. Until the statute 27 Hen. 8, c. 10, no legal estate passed by the conveyance of a covenant to stand seised, which was but only a use ; but now by that statute, the use draws the possession to it; and then, by this conveyance, the tenant in tail is seised to his own use for life, the remainder to J. Machil his sou in tail; which conveyance the tenant in [19] tail cannot avoid in his own life: and then it follows, that he only has an estate for life with remainders over ; so that the suffering of a recovery is a forfeiture of his estate. The covenant to stand seised, by the rule of grants, shall be taken most strongly against him, and most advantageously for those who are to take by it \ and the rather, for that here the uses are to him for whose benefit the Statute de Donis was made, viz. the eldest sou, that is, the heir apparent. It is objected, that this being by way of covenant to stand seised, nothing passes but what may lawfully pass aa in the case of a grant; and then it will make uo alteration of the estate-tail. But I answer, that it is true a covenant to stand seised does not work a discontinuance, yet all the estate may be as much devested out of the tenant in tail himself as if there were a discontinuance, and the covenant will not pass away the remainder limited over, but it will pass a base fee, or put the estate-tail in abeyance. Suppose he had covenanted to stand seised to the use of his son immediately, or to the use of a third person immediately, with remainders over, would not that put the estate-tail in abeyance, or pass a base fee1? And how does this case differ from that? A covenant to stand seised operates like a bargain and sale, that is, by way of use; both enure by way of grant, and receive their virtue from the Statute of Uses ; and all the difference is, that the Statute of Henry the Eighth ordains, that no estate of freehold shall pass by the Statute of Uses, in case of bargain and sale, until inrollment, but that is only a condition sine qud non ; and it is the statute 27 Hen. 8, c. 10, that both raises the use and creates the estate; then if tenant in tail bargain and sell his estate to a man and his heirs, a base fee will pass (a). And though Littleton says (b), that if tenant ia tail grant toticm statum suum, the grantee has but an estate for life of the tenant in tail, yet that must be meant, that he has but an absolute indefeasable estate only duriug his life, but still during his life he has a base fee; and the issue, after the death of the tenant in tail, may bring a formedon against the grantee, which shews-the estate was not absolutely determined by his death (a). If tenant in tail bargain and sell to another and his heirs, and afterwards levy a fine to A. and his heirs, to-the use [20] of A. and his heirs, the bargainee now has an estate to him and his heirs, during the continuance of the estate-tail, which the fine to the use of another could not give if he had it not before. Some hold, that by the bargain and sale of the tenant in tail to a man and his heirs, he only has a descendible freehold, and the estate-tail is in abeyance (b). And after such bargain by tenant in tail to another and his heirs, the tenant in tail has no reversion or remainder in him; and he cannot punish waste,. or enter for a forfeiture ; and therefore all the right of the estate will be out of him. and by consequence in abeyance: and here if the right of entail be in abeyance, it will do as well for my purpose...
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