families, but very injurious to the industry and commerce of the nation. It was not until Taltarum's case, 12 Edw. IV., that relief was obtained against this great national grievance, and it was given by a bold and unexampled stretch of the power of judicial legislation. The judges, upon consultation, resolved, that an estate tail might be cut off and barred by a common recovery, and that by reason of the intended recompense, the common recovery was not within the restraint of the statute de donis. These recoveries were afterwards taken notice of, and indirectly sanctioned, by several acts of Parliament, and have, ever since their application to estates tail, been held as one of the lawful and established assurances of the realm. They are now considered simply in the light of a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate, as if he were a tenant in fee-simple; and the estates tail in England, for a long time past, have been reduced to almost the same state, even before issue born, as conditional fees were at common law, after the condition was performed by the birth of issue. A common recovery removes all limitations upon an estate tail, and an absolute, unfettered, *pure fee-simple, passes as the legal effect and operation of a common recovery. It is the only mode of conveyance in England, by which a tenant in tail can effectually dock the entail. If he conveys by deed, he conveys only a base or voidable fee, and he will not exclude his heirs per formam doni. Even by fine, he only bars his issue, and not subsequent remainders. He conveys only a base or qualified fee, though the remainder-man will be barred by limitation of time, as a stranger would upon a fine levied with proclamations. It is the com

*14

* Co. Litt. 19. b. Mildmay's case, 6 Co. 40. Mary Portington's case, 10 Co. 35.

b

mon recovery only that passes an absolute title. In Mary Portington's case, Lord Coke says, that the judgment in 12 Edw. IV., was no new invention, but approved of by the resolutions of the sages of the law; who, "perceiving what contentions and mischiefs had crept in, to the disquiet of the law, by these fettered inheritances, upon consideration of the act, and of the former exposition of it by the sages of the law, always after the said act, gave judgment that in the case of a common recovery, where there was a judgment against the tenant in tail, and another judgment against the vouchee to have in value, the estate should be barred."

Estates tail were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before our revolution, subject equally to the power of being barred by a fine or common recovery. But the doctrine of estates tail, and the complex and multifarious learning connected with it, have become quite obsolete in most parts of the United States. In Virginia, estates tail were abolished as early as 1776; in New-Jersey, estates tail were not abolished until 1820; and in New-York, as early as 1782, and all estates tail were turned into estates in *fee-simple absolute. So, in North Carolina,

*15

• Martin v. Strachan, 5 Term Rep. 107, note. This case was affirmed in the House of Lords. Willes' Rep. 444. By the statute of 3 and 4 Wm. IV., c. 74, conveyances in England by fine and recovery are abolished, and all warranties of lands entered into by tenants in tail are declared void against the issue in tail, and estates-tail can now only be barred by a deed enrolled under the statute.

b 10 Co. 38.

In the Pennsylvania charter of 1681, it was expressly declared, that estates of inheritance might be granted in fee-simple, or in fee-tail, the statute de donis notwithstanding.

In Virginia, a law was passed, in 1705, to take away from the Courts, the power of defeating entails. Tucker's Life of Jefferson, vol. i. 21. • Act of Virginia, of 7th October, 1776. Acts of Assembly of New-Jersey, 1784, 1786, and 1820. R. S. N. J., 1847. Doe v. Robinson, 2 South. 713. Den v. Spachius, 1 Harrison's Rep. 172. Laws of New-York, sess. 6,

c. 2, sess. 9, c. 12. New-York Revised Statutes, vol. i. 722, sec. 3.

a

Kentucky, Tennessee, and Georgia, estates tail have been abolished, by being converted by statute into estates in fee-simple. In the states of South Carolina and Louisiana, they do not appear to be known to their laws, or ever to have existed; but in several of the other states, they are partially tolerated, and exist in a qualified degree.Þ

Act of North Carolina, 1784. Act of Kentucky, 1796. Griffith's Reg. under the appropriate heads, No. 8. Prince's Dig. of the Laws of Georgia, 1837, p. 231. 246.

The Civil Code of Louisiana, art. 1507, prohibits substitutions and fidei commissa. It is more rigorous than the Code Napoleon, for it prohibits substitutions in favor of the grandchildren of the testator, or of the children of his brothers or sisters, and even when the provisions of the will do not tend to alter the course of descents, and whether the substitution be conditional or unconditional. The persons to take must be in esse and designated by the will. The testator cannot control property beyond one life. He may name children living, and provide that, after the death of their mother, they shall take the property. Code, art. 1509. Rachal v. Rachal, 1 Rob. Loui. Rep. 115. In New-Hampshire, estates tail are said to be retained, but I should have inferred from statutes passed in 1789, 1791, and 1792, respecting conveyances by deed and by will, and the course of descents, that estates tail were essentially abolished. But it was not so, for by statute in 1837, any tenant in tail, in New-Hampshire, may convey by deed his estate, and bar all remainders and reversions as effectually as by a fine or common recovery. So, a tenant for life, with the person having a vested remainder in tail, may by deed convey the whole estate, as if the remainder was in feesimple. In Alabama and Mississippi, a man may convey or devise land to a succession of donees then living, and to the heirs of the remainder-man. Statute of Alabama, 1812. In Connecticut, (Kirby's Rep. 118.176, 177. Hamilton v. Hempstead, 3 Day, 332. Swift's Dig. vol. i. 79. Allyn v. Mather, 9 Conn. Rep. 114,) and in Vermont, Ohio, Illinois, and Missouri, if an estate tail be created, the first donee takes a life estate, and a fee-simple vests in the heirs, or person having the remainder after the life estate of the grantee, or first donee in tail. Revised Statutes of Vermont, 1839, p. . 310. Statutes of Ohio, 1831. Statutes of Connecticut, 1784. Ibid. 1821. Ibid. 1838. Revised Laws of Illinois, 1833. Revised Statutes of Missouri, 1835. This is also the case in New-Jersey, by the act of 1820. Elmer's Dig. 130. The estate on the death of the tenant for life vests in his children, though difficulty has been suggested to exist if the grantee has no children, or their issue. Griffith's Reg. The tenant in tail in those states, is in reality but a tenant for life, without the power to do any act to defeat or encumber the estate in the hands of the heir or person in remainder. In Indiana a person may be seised of an estate tail, by devise or grant, but he

Conditional fees at common law, as known and defined prior to the statute de donis, have generally partaken of the fate of estates in fee tail, and have not been revived in this country. Executory limitations under the restrictions requisite to prevent perpetuities, and estates in fee upon condition, other than those technical conditional fees of which we are speaking, are familiar to our American jurisprudence, as will be more fully shown in a subsequent lecture. In Connecticut, the doctrine of conditional fees, so far as they are a species of entails, restraining the descent to some particular heirs in ex

shall be deemed seised in fee after the second generation. Revised Statutes of Indiana, 1838, p. 238. In Connecticut there may be a special tenancy in tail, as in the case of a devise to A. and to his issue by a particular wife. The estate tail, in the hands of the issue in tail, as well special as general issue, male or female, is enlarged into an estate in fee-simple. In Rhode Island, estates tail may be created by deed, but not by will, longer than to the children of the devisee, and they may be barred by deed or will. Estates tail exist in Maine, Massachusetts, Delaware, and Pennsylvania, subject, nevertheless, to be barred by deed, and by common recovery, and in two of these states by will, and they are chargeable with the debts of the tenant. Dane's Abr. vol. iv. 621. Lithgow v. Kavenah, 9 Mass. Rep. 167. 170. 173. Nightingale v. Burrell, 15 Pick. 104. Corbin v. Healy, 20 Pink. 514. Statutes of Mass. 1791, c. 60. Mass. Revised Statutes, 1836, part 2, c. 50. Jackson on Real Actions, 299. American Jurist, No. 4, p. 392. Purdon's Dig. 353. Riggs v. Sally, Maine Rep. vol. xv. 408. A fee-simple passes on a judicial sale to satisfy a charge. This is so decided in one of those states, and the same consequence must follow in all of them, when the land is chargeable with debt. Gause v. Wiley, 4 Serg. & Rawle, 509. In Maryland, estates tail general, created since the act of 1786, are now understood to be virtually abolished, since they descend, and can be conveyed, and are devisable, and chargeable with debts, in the same manner as estates in fee-simple. Docking estates tail by common recovery had been previously abolished by statute in 1782, and they were to be conveyed as if they were in fee. It is equally understood that estates tail special are not affected by the act of 1786, and therefore the decisions prior to Newton v. Griffith, (1 Harris & Gill, 111,) would seem to apply to that species of estates tail. Such estates may be barred by deed as well as by common recovery; and they are chargeable with debts by mortgage, and not otherwise; and they are not devisable; and if the tenant dies seised, they go to the issue, but not to collaterals. Statutes of 1782, and 1799. 3 Harris & McHenry, 244. 1 Harris & Johns. 244. 465. 2 ibid. 69. 281. 314. 3 ibid. 302. Newton v. Griffith, Raymond's Digested Chancery Cases, 115.

clusion of others, have never been recognized or adopted. These conditional fees are likewise understood to be abolished in Virginia, by a statute which took effect in 1787; and this I apprehend to be the better construction of the statute law of New-York in respect to these common law entailments; for the owner can alienate or devise them, as well as an absolute estate in fee. By the act of 1787, every freeholder was authorized to give or sell at his pleasure any lands whereof he was seised in fee-simple; and by the act of 1813, every person having an estate of inheritance, was enabled to give or devise the same; and by the new revised statutes,d every person capable of holding lands, and seised of or entitled to any estate or interest therein, may alien the same. These qualified fees are estates of inheritance in fee-simple, though not in fee-simple absolute; and they would seem to come within the letter and spirit of the statute provisions in NewYork. In South Carolina, fees conditional at common law exist, and fees tail proper have never existed. The first donee takes an estate for life, if he has no issue: but if he has issue, the condition of the grant is performed, and he can alien the land in fee-simple.

*17

The general policy of this country does not encourage restraints upon the power of alienation of land; and the New-York Revised Statutes have considerably abridged the prevailing extent of executory limitation. The ca

Laws of New-York, sess. 10, c. 36.

Laws of New-York, sess. 36, c. 23.

a New-York Revised Statutes, vol. i. 719, sec. 10.

e Litt. sec. 13. Co. Litt. 19, a.

2 Bay, 397. 1 M'Cord's Ch. Rep. 91. 2 ibid. 324. 326. 328. 2 Bailey, 231. The creation of a fee-simple conditional, passes the whole estate to the tenant in fee. The existing possibility of a reverter is held not to be an estate, and neither the subject of inheritance nor devise. The fee conditional in the heir at law cannot merge in the possibility of reverter, if they should both meet in the same person. 1 Hill's S. C. Ch. Rep. 276.