case sir John Robinson versus comens Feb atk SC a devise land to b and his  heir to the use of b and his heir in trust to pay debt and afterward in trus  for his granddaughter c late wife of the plaintiff and the heir of her body  remainder to b in fee upon condition that he marry c and give he his personal  estate in trust for c until she attain full age and make b executor and die c  refuse to marry b and marry the plaintiff and at full age she and her husband  suffer a recovery of the premise the condition of the devise in fee to b be  dispense with by the lady refusal but then that remainder be well bar by the  recovery without a fine though the bargain and sale whereby the tenant to the  prcipe be make be not enrol till after the recovery be complete Robert  Sheffield be seize of a real estate and possess likewise of a considerable  personal estate by will devise all his land unto the defendant and his heir to  the use of the defendant and his heir in trust for payment of his debt and  afterward in trust for his granddaughter mary the plaintiff late wife and the  heir of her body remainder to the defendant comens and his right heir upon  condition that he shall marry the testator granddaughter and give he likewise  his personal estate in trust for mary until she shall attain her age of  twentyone and make the defendant his executor and die soon after the defendant  bring a bill for perpetuate of testimony of the witness to the will and in his  bill recite the clause in Robert sheffields will declare case tempt Talbot  himself ready and Willing to marry the young lady but she by her answer set  forth her absolute aversion to the match and utter refuse to have he and soon  after marry the plaintiff she and her husband after she have attain her age of  twentyone make a bargain and sale to I S in order to the suffer a common  recovery wherein her husband and she be vouch and the use thereof be to the  issue of the marriage remainder to her own right heir the lady die leave issue  by the plaintiff two child who set forth their right under the deed and  marriage settlement and insist upon the defendant remainder be bar by recovery  this bill be bring against the defendant to have a conveyance accord to the  use declare in the recovery Lord chancellor the first question be what sort of  estate the remainder in John comens be whether it be a trust or a legal estate  it be observable that the whole estate be give to the defendant and his heir  to the use of he and his heir which be a complete disposition of the whole  legal estate and be in case of a will will be so of the equitable interest  likewise unless the testator intent appear to the contrary as in this case it  manifest do for it be give in trust for payment of his debt c and so far be a  limitation of a equitable estate the remainder of which have the testator go  no far will after the purpose serve return to the heir at law as be determine  upon sergeant maynard will but then there come a remainder to the defendant  and his right heir c it be true that the word remainder proper speak signify  only a continuance of the same kind of estate as be before limit which here be  only a trust estate for when the whole legal estate be dispose of and part of  the equitable interest likewise there the remainder must be a equitable  remainder in this case indeed it be not a absolute one but conditional which  when the case tempt Talbot condition be perform will vest the estate in he and  if the condition be not perform it will then descend to the heir the testator  therefore have consider it as a equitable interest and yet it be likewise true  that this equitable interest when vest in the same person with the legal one  must as to some purpose be consider as a legal interest the next question be  whether the condition annex to the defendant remainder be a condition  precedent or subsequent and as to this I be incline to think it be a condition  subsequent there be no technical word to distinguish condition precedent and  subsequent but the same word may indifferent make either accord case tempt  Talbot er p to the intent of the person who create it in this case the  precedent limitation be a estate tail in possession and therefore why shall we  not say that as to this remainder likewise it be the testator intent to have  it vest immediate in the defendant the limitation be immediate although the  condition upon which it depend be subsequent whether the defendant have break  the condition or not have not be prove but from his answer and some other  thing that have appear in the cause I be incline to think it now dispense with  partly by the lady Robinson be death and partly by her declaration in her  answer to the former bill that she will not marry he and therefore the  defendant interest be now become absolute another question have be make  whether the interest of the lady Robinson and her husband be barrable by a  recovery and if it be whether it be well bar b this recovery without a fine it  have be say that a legal and a equitable interest can be incorporate together  but that objection can affect this case for though the legal and equitable  estate can be incorporate yet the testator have not limit a equitable estate  and then the legal estate but have at first give the whole fee it happen  indeed that the last part of case tempt Talbot the equitable interest may be  consider as merge by come to one and the same person who have the whole legal  estate in he but it will be hard that by come to the defendant although not  absolute for the heir may upon the condition break have take the equitable  interest out of he it will be hard I say that this shall prevent their  incorporation I therefore think it a equitable estate in the defendant as well  as that which be in the lady Robinson and consequent that she and her husband  have a power to bar it whether it have be do in this case be next to be  considered Vide north v champernon Charles Cas vern S c Beverley v Beverley  vern butler v Allington bro Charles Rep Salvin v Thornton Ambl Rep cruise upon  fine and recovery it have be say that a feme tenant in tail and her husband  can make a tenant to the prcipe without a fine but whatever may be the case  where a husband be mere seize in right of his wife be not necessary for I to  determine because in this case sir John Robinson do by his intermarriage  become entitle to a estate by courtesy and therefore be alone without his wife  join may have make a good tenant to the prcipe it have be also object that the  bargain and sale whereby the tenant to the prcipe be make be not enrol until  the recovery complete as to that if the Lord hobart opinion as cite some  Goldbolts report have be law from judicial authority will certain have follow  it if there be no enrolment then the bargain and sale be void but if there be  a enrolment within six month then it be good by relation For although the  freehold do pass not from the bargainer until enrolment yet as soon as that be  do the freehold be consider as have pass from the bargainer at the time when  the bargain and sale be execute by relation cruise upon Com Rec and so decree  for the plaintiffs The principal question in this case seem to have be whether  the remainder to the defendant comens be to be construe as the remainder of a  legal or of a trust estate for if it be a remainder of the legal estate the  recovery suffer by the beneficiary and trust can not operate so as to bar the  legal remainder recovery of that kind only operate on the trust estate whereof  they be suffer and the equitable remainder expectant thereon but do not affect  the legal estate the court consider the legal estate and use as have be whole  dispose of by the first part of the devise and that no remainder can be in the  defendant of that estate which be clear vest in he hut that as part of the  equitable interest be likewise give to he the remainder in question can be no  other than a equitable remainder which if not dispose in the manner it be will  necessary have result to the testator heir at law the intent of the testator  videlicet that the remainder shall be consider as a equitable one appear  manifest to the court for he give it on a condition which will be entire  defeat if the remainder of the legal estate be hold to vest by force of the  first devise see as to this point of relation hind case   b whatever doubt may  have be former entertain whether a husband seize jure wife can make a tenant  to the prcipe of his wife land for the purpose of suffer a common recovery  without the wife join he in a fine it now seem to be a settle point that he  can Mr cruise in his essay upon fine and recovery p suggest that this doubt  probable arise from a inaccurate statement in the report of Lord Talbot  argument upon that occasion and state from the authority of the late Mr booth  Lord Talbot word to have be these if I shall lie it down as a rule that where  the wife be entitle to a estate tail in possession her husband and she can not  make a tenant to the prcipe for docking of the entail without a fine because  the law be suppose to appoint no other method by which a woman under coverture  can convey her freehold but by fine I shall shake many of the common recovery  of the kingdom for whatever may have be the practice of some overcautious  conveyancers yet I believe it have often be hold that the husband alone may by  deed only and without any fine levy by the wife convey a sufficient freehold  to the grantee to make he tenant to the prcipe Mr Bittler in a note on the  first institute observe that Mr booth statement of Lord Talbot argument be  confirm by a manuscript report of thin case of Robinson v comens in his  possession Vid also roll Abr title recovery a pl big treatise of Com Rec  whereby it be lie down that a husband seize joint with his wife whether by  moieties or entireties or seize only in right of his wife may create a estate  of freehold during the coverture and thereby make a good tenant to the prcipe  case tempt Talbot er p