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A common recovery was a legal proceeding in England that enabled lawyers to convert an entailed estate (a form of land ownership also called a fee tail) into absolute ownership, fee simple. This was accomplished through the use of a legal fiction devised by lawyers in the fifteenth century to prevent the enforcement of entails. It was based on the reasoning of the judges in a 1472 case usually known as Taltarum's Case.
Entails were originally designed to keep ownership of land within a family. Thanks to the effects of the statute De donis conditionalibus, the intent of the entail could not be broken, which meant that land in fee tail could not simply be sold, transferred, or mortgaged, as whatever the current owner did with it, ownership would automatically pass on their death to those specified by the entail. While entails performed a valuable function in the 13th century, when De donis conditionalibus was enacted, by the 15th century, changes in social and economic conditions meant that landowners were more concerned with being able to freely sell, convey or mortgage their land. It was in this time that the common recovery was devised as a way of circumventing De donis conditionalibus.
The common recovery was intended to turn land held in fee tail into land held in fee simple, and exploited elements of existing legal procedures to achieve this.
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:
- 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 or an advowson involved, the description of the land (which may be exaggerated) merely stated the improvements: number of houses etc.; extent: acres of land; type: meadow, pasture etc.; and the location: township or parish where it was. These descriptionns 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, common 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 estates, only as equitable interests, and enrollment has become unnecessary.
Like Fines (or Final Concords), common recoveries were proceedings based upon a legal fiction in order to produce a genuine change, but without truly adverse parties. In this they differ from the use of a legal fiction in ejectment cases, where there was a genuine dispute, but one that required a legal fiction to make it justiciable.
- Biancalana, Joseph (2001) The Fee Tail and the Common Recovery in Medieval England, 1176–1502 Cambridge University Press, Cambridge, England, ISBN 0-521-80646-1