case edward pell against William brown Hilary term James roll a devise to a  and his heir for ever pay to b twenty pound and if a die without issue live c  then c shall have the land pay the say sum as a shall have pay convey to a a  estate in fee and not a estate in tail ante post SC roll ab roll ab SC roll  Rep hard keb   light   godb palm lev Mod Vaugh side hob cro car Leon Leon show    cro Elizabeth croak James er p vern salk Fearne Com dig Com dig ld raym  dougl Bac ab Bac ab Cowp a devise in fee to a and if he die without issue in  the lifetime of c then to c and his heir be a good executory devise to take  effect on the contingency of a die in the lifetime of c without issue on a  devise to a and his heir and if he die without issue in the life of c then to  c and his heir if a enter and suffer a common recovery without vouch c the  executory devise to c be not bar by the recovery Pigot cruise peer wms on a  issue whether land devise in fee be the freehold of a a verdict find a to be  the heir of the devisor be good without find that the land be in soccage  replevin for the take of three cow at Rowdham the defendant justify for damage  pheasant as in his freehold the plaintiff traverse the freehold and thereupon  be at issue a special verdict wonder as find in which the case appear to be  that one William brown father to the defendant be seize of this croak throw  land in fee have issue the defendant his son and heir and Thomas brown his  second son and Richard brown a three son by his will in write devise this land  to Thomas his son and his heir for ever pay to his brother Richard twenty  pound at the age of twentyone year and if Thomas die without issue live  William his brother that then William his brother shall have those land to he  and his heir and assign for ever pay the say sum as Thomas shall have pay  Thomas enter and suffer a common recovery with a single voucher to the use of  himself and his heir and afterward devise it to the wife of Edward pell the  plaintiff and her heir and die without issue live the say William brown who  enter upon Edward pell and take the distress this case be twice argue at the  bar and afterward at the bench and the matter be divide into three point first  whether Thomas have a estate in fee or in feetail only second admit he have a  fee whether this limitation of the fee to William be good to limit a fee upon  a fee three if Thomas have a fee and William only a possibility to have a fee  whether this recovery shall bar William or that it be such a estate as can be  extirpate by recovery or otherwise as to the first all the justice resolve  that it be not a estatetail in Thomas but a estate in fee for it be devise to  he and his heir for ever and also pay to Richard twenty pound both which  clause show that he intend a fee to he and the clause if he die without issue  be not absolute and indefinite whensoever he die without issue but it be with  a contingency if he die without issue live William for he may survive William  or have issue alive at the time of his death live William in which case  William shall never have it but be only to have it if Thomas die without issue  live William vide Henry pl Edward pl   Berisfords case   Lampets case and  therefore it be not like to the case cite on the other part Henry pl ass pl  and dyer Clacteys case for it be a exposition of his intent what issue shall  have it videlicet of his body and whensoever he die without issue the land  shall remain c but here it be a conditional limitation to another if such a  thing happen and therefore they all rely upon the book dyer and dyer which be  all one with this case second they all agree that this be a good limitation of  the fee to William by way of that contingency not by way of immediate  remainder for they all agree it can be by remainder as if one devise land to  one and his heir and if he die without heir that it shall remain to another it  be void and repugnant to croak throw the estate for one fee can be in  remainder after another for the law do not expect the determination of a fee  by his die without heir and therefore can appoint a remainder to begin upon  determination thereof as Henry pl and Henry dyer but by way of contingency and  by way of executory devise to another to croak James er p determine the one  estate and limit it to another upon a act to be perform or in failure of  performance thereof c for the one may be and have always be allow as devise of  his land to his executor to sell if his heir fail of payment of such a sum at  such a day this be a executory devise so the case cite in Borastons case   of  wellock and Hammond where a devise be to the old son and heir pay such a sum  to the young son otherwise that the land shall be to he and his heir be a good  executory devise and a precedent be show Trinity term Elizabeth roll  fulmerston v steward where upon special verdict it be adjudge that whereas sir  Riebard fulmerston devise to sir Edward Clear and Frances his wife daughter  and heir of the say sir Richard fulmerston certain land in Elden in the county  of Norfolk to they and the heir of sir Edward Clear upon condition they shall  assure land in such place to his executor and their heir to perform his will  and if he fail then he devise the say land in Elden to his executor and their  heir it be adjudge to be a good limitation and no condition for if it shall be  a condition a shall be destroy by the descent to the heir a but it be a  limitation and as a executory devise to his executor who for nonperformance of  the say act enter and sell and adjudge good so here c for it be a good  executory devise upon this limitation and Doderidge say the opinion Henry dyer  be that such a limitation in fee upon a estate in fee can be and it have be  oftentimes adjudge contrary thereto to the three point Doderidge hold that  this recovery shall bar William for he have but a possibility to have a fee  and quasi a contingent estate which be destroy by this recovery before it come  in be for otherwise it will be a mischievous kind of perpetuity which can not  by any mean be destroy and although it be object that a recovery shall not bar  but where a recovery in value extend thereto as appear by capel case a where a  rentcharge grant by he in remainder be bind yet he hold that this recovery  destroy the immediate estate all contingency and dependency thereupon be bind  and a recovery shall bind every one who can falsify it and here he who have  this possibility can falsify it therefore he shall be bind thereby but all the  other justice be herein against he that this recovery shall not bind for he  who suffer the recovery have a fee and William brown have but a possibility if  he survive Thomas and Thomas die without issue in his life no recovery in  value shall extend thereto unless he have be party by way of vouchee and then  it shall for by enter into the warranty croak throw he give all his  possibility therefore they agree to the case which Damport at the bar cite to  be adjudge Elizabeth where a mortgagee suffer a recovery it shall not bind the  mortgagor but if he have be party by way of voucher it have be otherwise and  here be not any estate depend upon the estate of Thomas bray but a collateral  and mere possibility which shall not be touch by a recovery and if such  recovery shall be allow then if a man shall devise that his heir shall make  such a payment to his young son or to his executor otherwise the land shall be  to they if the heir by recovery may avoid it it will be very mischievous and  may frustrate all devise and there be no such mischief that it shall maintain  perpetuity for it be but in a particular case and upon a mere contingency  which peradventure never may happen and may be avoid by join he in the  recovery who have such a contingency and on the other part it will be far more  and a great mischief that all executory devise shall by such mean be destroy  Houghton justice in his argument put this case if a man give or devise land to  one and his heir as long as I S have issue of his body he shall not by  recovery bind he who make this gift without make he a party by way of vouchee  for a recovery against tenant in feesimple never shall bind a collateral  interest title or possibility as a condition or covenant or the like wherefore  they all except Doderidge hold that this recovery be no bar then Doderidge  take exception to the verdict that the land be not find to be hold in soccage  for otherwise it may be intend to be hold in knight a cro Elizabeth     Leon  Leon Owen vent Mod atk ves burr a   a croak James er p service a and so it  shall be intend and then the devise be void for a three part and so it be  resolve Elizabeth dyer that it ought to be show that the land be hold in  soccage otherwise the devise be not good for the entire but all the justice  hold it not to be material as this case be for the issue be whether it be the  freehold of William brown who be find to be heir to the devisor then although  it be admit that the land be hold by knight service yet he have the entire  videlicet two part by the devise and a three part by descent wherefore the  tenure be not material as this case be and it be adjudge for the defendant