Talk:Common recovery

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Old comment[edit]

I hope I have correctly described this. I have written this from my experience of examining historic legal documents, rather than based on any text book. If some one with access to one likes to correct me, I will only be too happy - provided the text book is in fact correct. Since Recoveries were abolished so long ago, this probably means a mid-Victorian text book, from a period when common recoveries still appeared as part of land titles that lawyers were actually examining for technical correctness. Peterkingiron 19:41, 1 July 2006 (UTC)

Simplify tag[edit]

I do not see how this can be simplified. It is a complicated, obscure, and obsolete subject. You cannot expect it to be put in plainer English, but that is not feasible. I am not sure that contemporary lawyers really understood it; they just did it. Peterkingiron (talk) 15:59, 4 July 2010 (UTC)

I have made some edits that I hope will make it easier to read, if not understand. Understanding the concept of legal fictions is essential prior to understanding common recovery. Also understanding how hidebound British procedure at law or in chancery had become by 1500, helps in understanding the development of legal fictions. --Bejnar (talk) 05:17, 21 February 2012 (UTC)

Please clarify the process[edit]

I don't think I quite understand the process and I think this is primarily because the layman wasn't kept in mind when the section was written. I'll try to express what my impression of the text is, so that you may clarify it based on which bits I got right and which bits I got wrong.

As a preliminary, there needed to be a conveyance of the land.

Huh? Isn't the point of an entail that the land cannot be conveyed, except by death of the owner in tail? If that is the point of the legal fiction, the sentence should clarify the illegality.

The owner (in tail) of the land A ...

I think the use of letters A, B, C, D here is confusing. Also, why is ‘in tail’ between parentheses? Isn't it kind of the point that he's the owner in tail?

... conveyed it to someone else B (known as the tenant in precipe) ...

I'm assuming at this point that the owner in tail cannot actually do this. Does it matter who the tenant in precipe is, or will anybody do? Were there risks for him, and did he receive compensation? What kind of conveyance was commonly used, donation, sale, ...?

... to the intent that a third person C (known as the demandant) might sue for it.

Is the demandant the heir?

C [the demandant] accordingly issued a writ against B [the tenant in precipe].

Were the contents of this writ in essence ‘the land is under entail, so the owner in tail cannot have conveyed it to you’?

In court, B defended his right saying (correctly) that he had acquired it from A.

So the tenant

in precipe is saying ‘I know nothing of the entail, I thought I acquired the land legally’, right?
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).

Wasn't it immediately obvious to the court, from public records, that this was a lie? By the way, if I'm understanding correctly, the common vouchee could be anybody without land or significant wealth, right? What was in it for him?

D asked for time and failed to appear subsequently; alternatively, he dashed out of the court.

Why does this matter, given the transparency of the lie?

In either case, the judgment was that C should recover the land, and that D should compensate B with land of equal value.

How is that possible? How could the judge justify any other judgement than that the vouchee had knowingly illegally conveyed the land, and appointed the vouchee again as the owner in tail, saddling him with the legal costs, and possibly with a debt of compensation to the tenant in precipe? What laws, statutes, ... were called upon?

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.

Why didn't the court rule against the vouchee, given that it must have been abundantly clear that the vouchee was the owner in tail and couldn't have conveyed the land?

The result was thus that C recovered land in fee simple, which A had owned in only fee tail; thus, the entail was barred.

I guess an argument could be made to hand the land to the demandant rather than the vouchee, if only to prevent further litigation, but why wasn't the demandant made owner in tail? Again, how did the court justify this?

So you see, I still don't really understand how this works, and I also think the text is unclear in places. I also think it can easily be clarified by someone who knows more about the subject. I'm getting the impression from the current text of the article that the court was knowingly complicit in breaking the law, handing out an illegal judgement which was made legal by the simple fact that judgements handed out by courts are by definition legal. I also think there should be more references, for example to actual legal cases. — Preceding unsigned comment added by (talk) 12:02, 14 February 2016 (UTC)

The preliminary conveyance often took the form of a lease and release, I think. No conveyance of the freehold was formally enrolled at this stage and there was nothing 'illegal' about this.
The whole point was that by a quirk of the legal process, the land would end up in fee simple. This was considered to be good law in itself, and the fact that the various actions were an elaborate legal fiction, in which the court colluded, was not considered 'illegal', it was just the way the law happened to work. Recall also that the real issue with conveyances of entailed estates was not that they were illegal as such, just that they would have no lasting effect, as the entail would always kick in on the tenant's death no matter what else they had tried to do with the land.
Any settlement of freehold property from the 15th century to the 18th involves a common recovery and all work in the same way, so specific cases don't help much. There is one case, called "Talcarn's Case" but more usually given the name "Taltarum's Case", which was usually cited as a precedent.Svejk74 (talk) 12:59, 14 July 2016 (UTC)