brown case John martin plaintiff John strachan and another defendant in error  April Mews dig seven Martin d Tregonwell v Strachan where a common recovery be  suffer of a estate tail the recoveror acquire a absolute estate in see simple  derive out of the estate tail so that if a tenant in tail by purchase under a  marriage settlement make by his ancestor ex part of a mother with the  reversion in fee by descent ex part of a mother suffer a common recovery to  the use of himself in fee this estate will descend to his heir general ex part  of a father for the recovery do not let in the reversion in fee but a now  estate be thereby acquire by purchase which be total different from the old  estate tail see term Rep king b roe d crow v Baldwere all where the above rule  be confirm and extend to copyhold as well as freehold land the report in  strange be brief and confuse state for the judgement of Lord chief justice lee  see term Rep king b etcetera in n see also the note in Nolans edition of  strange report etcetera judgement of the court of king b affirm strange will  the plaintiff bring his ejectment in the court of king bench for one message  three garden three orchard acre of land acre of meadow acre of pasture and  acre of wood with the appurtenance in Milton abbess in the county of Dorset to  which the defendant appear and enter into the common rule to confess lease  entry and ouster and plead not guilty upon which issue be join in Michaelmas  term the cause be try at bar and the jury find a special verdict to the effect  follow videlicet that upon the that of August John Tregonwell be seize fee of  diverse manor message land tenement and hereditament in the county of Dorset  of which the premise in question be parcel and that he have issue two son John  and Thomas and on the that of October die seize of the premise after who death  the same descend to John his old son who enter and be seize thereof and have  issue John his son and be so seize on the that of December die after who death  the premise descend to John his son and he the say John the grandson enter and  be seize and have issue two daughter mary and Katherine and no other issue  that on the d of June by indenture quadrupartite of that date make and execute  between he by the name of John Tregonwell of Milton abbess in the county of  Dorset esquire and jane his wife of the first part franc lutterell of dunstar  castle and mary the old daughter of the say John Tregonwell of the second part  John Jones and Thomas Sidersin of the three part and Peregrine palmer Thomas  palmer John Harding and Samuel Pitt of the brown four part the say John  Tregonwell do covenant with the say Francis lutterell and his heir that the  say John Tregonwell and jane his wife will before the end of Trinity term then  next levy a fine sur conusance de law come Ceo etcetera with proclamation to  the say Jones and Sidersin or their heir of all those farm call Delcomb farm  WindmillAshes Huish farm Lushcombe farm and Chestcomb alias Churcomb farm and  of all land tenement and hereditament thereto belong and of all manner of  tithe of the say premise and of the manor of Milton abbess and of all rend of  assize thereto belong and of the coppice wood contain acre and of the  impropriate parsonage rectory of Milton abbess the impropriate tithe of  Wooland the impropriate tithe of widcomb of Holworth and also of a portion of  tithe in Milbourne saint Andrews to make the say Jones and Sidersin tenant in  a precipe for suffer a recovery which when suffer be declare to be as to the  farm of Delcomb with the appurtenance and all manner of tithe arise out of the  same to the use of the say John Tregonwell and his heir till a intend marriage  between the say Francis lutterell and mary Tregonwell shall be solemnized and  after that marriage to the say Francis lutterell for his life remainder brown  er p to the say mary Tregonwell for her life as to the mansion house of Milton  abbess and the appurtenance to the say John Tregonwell for life remainder to  jane Tregonwell for her life remainder if the say marriage take effect to  Francis lutterell and mary his intend wife for their life and the life of the  long liver of they and as to Delcomb farm after the limitation to the say  Francis lutterell and mary Tregonwell and as to the say mansion house and its  appurtenance after the limitation to the say John Tregonwell and jane his wife  Francis lutterell and mary Tregonwell to the say Peregrine palmer Thomas  palmer John Jones John Harding Thomas Sidersin and Samuel Pitt and their heir  to support contingent remainder and then to the use of the say Peregrine  palmer and the other trustee their executor etcetera for year then to the use  of the first and every other son of the body of the say Francis lutterell and  mary in tail male remainder to all and ever the other son and son of the say  mary in tail male remainder to Katherine Tregonwell young daughter of the say  John Tregonwell for life remainder to trustee to support contingent remainder  remainder to the first and every other son of the body of the say Katherine in  tail male remainder to the daughter and daughter of the say mary and Francis  in tail remainder to the other daughter and daughter of the say mary in tail  remainder to the daughter and daughter of Katherine in tail remainder to the  right heir of the say John Tregonwell and as to the say farm call windmill ash  Huish and Lushcomb with their appurtenance and all manner of tithe arise out  of the same to the say John Tregonwell and jane his wife for their life and  the life of the long liver of they remainder to Katherine for life remainder  to such person as shall be her husband at the time of her death for life brown  remainder to trustee to support contingent remainder remainder to the trustee  and their executor for year remainder to the use of the first and every other  son of the body of Katherine in tail male remainder to the say mary Tregonwell  for life remainder to trustee to support contingent remainder remainder to the  first and every other son of the say mary in tail male remainder to the  daughter and daughter of Katherine in tail remainder to the daughter and  daughter of mary in tail remainder to the right heir of the say John  Tregonwell in fee And as to the manor of Milton abbess rend of assize thereto  belong the farm of Chestcomb alias Churcomb the parsonage of Milton abbess  tithe of Wooland widcomb and Holworth and the portion of tithe in Milbourne  saint Andrews to the say John Tregonwell for his life remainder as to one half  thereof if the say marriage shall take effect to Francis lutterell for life  remainder to mary his intend wife for life remainder to trustee to support  contingent remainder remainder to trustee for year remainder to the first and  every other son of the say Francis and mary in tail male remainder to all and  every the other son and son of the body of the say mary in tail male remainder  to Katherine Tregonwell for life remainder to trustee to support contingent  remainder remainder to the first and every other son of the say Katherine in  tail male remainder to the daughter and daughter of the say mary and Francis  in tail remainder to all other the daughter and daughter of the say mary in  tail remainder to the daughter and daughter of the say Katherine in tail  remainder to the right heir of the say John Tregonwell in fee and as to the  other half thereof after the death of the say John Tregonwell to the use of  the say Katherine for life remainder to he who shall be her husband at the  time of her death for life remainder to trustee to support contingent  remainder remainder to trustee for year remainder to the use of the first and  every other son of the body of the say Katherine in tail male remainder to the  say mary for life remainder to trustee to support contingent remainder  remainder to the first and every other son of the body of the say mary in tail  male remainder to the daughter and daughter of the say Katherine in tail  remainder to the daughter and daughter of the say mary in tail remainder to  the right heir of the say John Tregonwell and as to the acre of coppice to the  say John Tregonwell for life remainder to jane his wife for her to receive  pound per and for life remainder as to one half thereof if the say marriage  shall take effect to the say Francis lutterell for life remainder to mary for  life remainder to trustee to support contingent remainder remainder to trustee  for year remainder to the first and every other son of the body of the say  Francis and mary in tail male remainder to Katherine Tregonwell for life re  brown er p remainder to trustee to support contingent remainder remainder to  the first and every other son of the say Katherine in tail male remainder to  the daughter and daughter of mary and Francis in tail remainder to all other  the daughter and brown daughter of the say mary in tail remainder to the  daughter and daughter of Katherine in tail remainder to the right heir of the  say John Tregonwell remainder as to the other moiety after the death of the  say John Tregonwell to Katherine for life remainder to trustee to support  contingent remainder remainder to trustee for year remainder to the first and  every other son of the say Katherine in tail male remainder to mary for life  remainder to trustee to support contingent remainder remainder to the first  and every other son of the say mary in tail male remainder to the daughter and  daughter of Katherine in tail remainder to the daughter and daughter of mary  and Francis in tail remainder to all other the daughter and daughter of mary  in tail remainder to the right heir of the say John Tregonwell that a fine be  levy and a recovery suffer accord to the use in the say indenture mention that  on the that of December Francis lutterell and mary Tregonwell be marry and  that he enter on such part as be limit to he immediate after the solemnization  of the say marriage and become seize thereof for life that on the that of  January jane the wife of the say John Tregonwell die and on the that of the  same month he also die whereupon the say Francis lutterell and Katherine  Tregonwell accord to their several right enter into the respective part of the  premise which be by the say indenture limit to they respective after the  decease of the say John Tregonwell and jane his wife and be seize that on the  that of August Katherine die a infant unmarried and without issue and  thereupon the say Francis and mary enter into such part of the premise as be  limit to the say Katherine and become seize that mary have issue one son who  die in the lifetime of his mother a infant without issue and two daughter mary  and Frances and no other issue that mary the old daughter in the year marry  sir George rook by who she have George rook her only son and that sir George  and his wife be dead that the say Frances the young daughter in marry Edward  ash esquire and be still live that Francis lutterell on the that of August die  seize leave mary his wife survive who on the that of August enter on the  premise and become seize that the say mary the widow on the saint of January  marry sir Jacob bank a Swede and have issue by he two son John and Jacob both  bear in England and on the that of march the say mary die seize that on her  death John bank the old son enter and be seize pursuant to the say indenture  fine and recovery and on the that of march die without issue that all person  prior in the limitation of the say indenture to Jacob bank the brother of John  be dead before John and all the term be surrender and extinguish before the  death of John bank that on the that of January sir Jacob bank brown die and on  the that of march Jacob the only brother of John enter and be seize ex part of  a mother that the say Jacob bank by indenture date the that of June do bargain  and sell the premise to John glass his heir and assign to make he tenant of  the freehold that a common recovery may he have against he which recovery be  to be and enure to the use of the say Jacob bank his heir and assign that this  indenture be duly enrol within six month and the recovery be suffer accord  that the premise in question be parcel of those comprise in the say recovery  and that afterward the say Jacob bank be seize and on the that of February die  seize without issue that Thomas Tregonwell the young son of John Tregonwell  first above name and only brother of John Tregonwell who be old son and heir  of the first name John Tregonwell have issue John his son that on the that of  may Thomas Tregonwell die and John his son and heir have issue John and die  and that John the grandson of Thomas have issue Thomas Tregonwell the lessor  of the plaintiff and on the saint of June die leave he his son and heir brown  er p that Laurence Bengston bank a alien have issue by Christina his wife a  alien the before name sir Jacob bank and three daughter Brita Ingri and Anna  Christina Brita marry one Peter Bohmgreen a alien and have issue by he four  daughter videlicet maria Christina Brita Christina and Margarita all alien and  die leave no other issue that Ingri be marry and have issue who name be  unknown to the juror all alien and die leave such issue live in Sweden that  Anna Christina be dead without issue that maria Christina the old daughter and  Brita the second daughter of Brita by Peter Bohmgreen be both live and that  Christina the three daughter of Brita by Peter Bohmgreen have issue alien who  name be unknown to the juror and be dead that Margarita the four daughter  marry John Strachan bear a alien and have issue the defendant John Strachan  their son bear in London the that of march and that Margarita die in February  leave he her only son that John Strachan the father of the say defendant by a  act of the will be naturalize and that the defendant be a naturalborn subject  the verdict then conclude to the judgement of the court this special verdict  be twice argue in the court of king bench in Hilary term and the court be  unanimous in their opinion give judgement for the defendant to reverse this  judgement a writ of error be bring in parliament and on behalf of the  plaintiff in error who claim ex part of a mother it be argue d rider n Gundry  that the rule of law be clear that the estate of one die seize by descent ex  part of a mother can descend to none but the heir ex part of a mother it be  find on natural brown justice that a estate shall go to the blood and family  from whence it come where the owner himself have not think fit to give it away  from they that this estate be original the inheritance of Jacob bank mother  and her ancestor and therefore if there have be no interruption in the course  of descent it must now descend to the plaintiff that the only interruption  insist on be the settlement of and the recovery and deed of use in as to the  former it be only a temporary interruption of the possession by the particular  or partial estate carve out of the fee the inheritance be still leave to  descend ex part of a mother and whenever those particular estate shall  determine whether by the death of the party or by bar or extinguishment of  they the possession will return to the old inheritance again and as to the  latter the recovery and deed of use only determine and bar the particular  estate and consequent let the fee into possession in the same condition and  quality as when in reversion and therefore can not alter the nature of the  ancient use or the descendible quality of it that this be clear the case where  a fine be levy by tenant in tail who have the reversion in fee in himself it  have be settle that such a fine extinguish the estate tail and let we the old  reversion into possession nor be there any material difference between a fine  and recovery for so far as their respective power reach they be both universal  hold to be bar of the particular estate and conveyance of their own  inheritance in fee it be object that a recovery not only bar the estate tail  but the remainder also but that distinction be total immaterial because it  affect only the extent of the bar or extinguishment not the manner in which  those instrument operate it prove the recovery to be a bar or extinguishment  of the estate tail both in possession and remainder but do not prove it to be  less a bar or extinguishment of either and the bar or extinguishment of both  by the recovery as much let we in the reversion in fee after both as a bar or  extinguishment by fine of one let we in the reversion in fee dependent on that  one only that this distinction can not be applicable to the case of a recovery  by tenant in tail with a immediate reversion in fee in himself and it will be  extreme difficult to maintain that in such a case the use will be the old one  and go ex part of a mother but that in the present case be a new one only  because there be a intermediate remainder in tail which be equal and but equal  bar with the estate tail in possession or if that shall be admit to be no  material point of distinction it will be as hard to maintain that if tenant in  tail with reversion in fee in himself descend ex part of a mother bar the  estate tail by a fine the result or declare use in fee to himself will be the  ancient use and brown er p go ex part of a mother but that if the same tenant  in tail bar the same estate tail by a recovery the result or declare use will  be a new use and go ex part of a father that it be apprehend no case will be  cite to brown warrant this distinction and if not reason and equity point out  that they ought both to have the same effect it be also object that a recovery  be the proper conveyance of a tenant in tail with remainder over and therefore  operate as a grant from he and that the recoverer come in under he in the per  as his grantee and therefore as a purchaser but this will be to make the  recovery operate not as a bar to the particular estate tail in possession and  remainder which be the sense and language of all the book but as a bar to his  own reversion in fee which be absurd nor indeed be a recovery in any other  sense a grant from the tenant in tail than as it be a common assurance by  which he may bar those particular estate and acquire or convey the feesimple  in possession but it be not less such a acquisition if he get it by bar the  particular intermediate estate and let his own fee into possession than if it  can be say to be a grant of the estate tail itself to himself in fee but  whatever may be the case where the estate tail in possession together with the  remainder or reversion in other include the whole inheritance yet where the  tenant in tail in possession have also the reversion in fee the recovery  operate as a conveyance of the reversion and a bar of the intermediate estate  a recovery be not a sort of conveyance more proper to bar remainder than a  fine be to bar a estate to tail alone nor can the recoverer come more under  the tenant in tail or his estate or be more proper a grantee from he of his  estate tail than the conusee of a fine be under the conusor and yet in this  latter case that notion clear do not prevent the estate tail from merge in the  fee it be however further object that the estate tail be continue and enlarge  by the recovery but this be at best a very inaccurate manner of speak if not  unintelligible or absurd since a estate tail can continue long than the issue  per form gift and a feesimple can with any propriety be call a enlarge estate  tail the only reasonable sense of such expression be that the tenant in tail  by exercise the power which the law have give he of bar the estate tail have  become possess of the absolute fee in possession but in this sense it be no  otherwise a enlargement of his estate than a surrender of tenant for life to  the remainderman in fee be a enlargement of the remaindermans estate and be  therefore more proper a enlargement of the feesimple by sink the particular  estate than a enlargement of the particular estate which be absolute destroy  nor do this manner of recovery in the least injure the absoluteness of power  which the law give the tenant in tail over the estate because he acquire as  much this way as the other with this advantageous circumstance that it keep  the estate in its natural channel and prevent the act do for one purpose only  from enure to another which the party never think of and which if he have he  may and probable will have avoid in support of the judgement it be contend f  Chute r Henley that Jacob bank be tenant in tail under the settlement of by  purchase and brown not descent the rule of descent rely on by that plaintiff  in error be only applicable where the person who estate be in question be at  the time of his death seize by descent and no way affect or influence the  present question if Jacob bank acquire the fee by suffer a recovery as tenant  in tail by purchase that a tenant in tail be consider in law as possible owner  of the whole fee videlicet that the remainder and reversion be in his power by  suffer a recovery which be the act of tenant in tail and take its effect out  of the estate tail in right of which alone he be empower to suffer such  recovery as he thereby acquire in judgement of law a absolute and pure fee  against the remainderman and reversioner although the reversion be in a  stranger whereas by a fine the estate tail be only extinguish and bar as  against the issue in tail but as to the remainderman or reversioner it subsist  notwithstanding that act as a base or determinable fee on failure of issue it  be therefore apprehend that by the recovery which remove all restraint and  limitation ensue or dependent after the estate tail the fee so acquire by  Jacob bank proceed out of the estate tail and take its effect to the use of  the person so enable in law to suffer the same as the result of his power in  virtue of the estate tail which be gain by settlement I e by purchase and  consequent the remainder and brown er p reversion which subsist before the  recovery be alike extinguish and put to a end by force and operation of such  recovery that if the estate tail as to the issue only be consider as bar by a  recovery and the old estate in fee or reversion subject to the estate tail be  let in and take place as contend for by the plaintiff the consequence and  inconvenience thereof will be that in that case every estate in the kingdom of  which a recovery be suffer by a tenant in tail seize also of the reversion in  fee will still remain liable as asset by descent to the specialty debt of the  ancestor from who it descend for the estate tail while it subsist and the base  fee gain by force of a fine suspend the remedy so long as there be issue and  therefore preserve the debt and this form of conveyance invent and long use to  strengthen the title of possessor who be tenant in tail will be a mean of  destroy such intention and will revive old demand to the ruin of many family  after hear counsel on this writ of error the judge who attend accord to order  be direct to deliver their opinion on the follow question videlicet whether  upon the death of Jacob bank the estate in question do by law descend to his  heir on the part of the mother or not and the judge have take time to consider  the lord chief justice of the common plead deliver their reason at large and  conclude with their opinion that the estate in question upon the death of  Jacob bank do not descend to his heir on the part of the mother whereupon it  be order and adjudge that the judgement give in the court of king bench shall  be affirm and the record remit and that the plaintiff in error shall pay to  the defendant in error pound for their cost in the house jour vol p