Exemplification essay example | OrthoWell Orthopedic
Example of Exemplification Essay | Majortests
This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement, in the Appendix, N° II. 2, we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed,—viz., to Abraham and Cecilia Barker till the marriage of John Barker with Katherine Edwards, and then to John Barker for life: remainder to trustees to preserve the contingent remainders; remainder to his wife Katherine for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to the first and other sons of the marriage in tail; remainder to the daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now, it is necessary, in order to bar the estate-tail of John Earker and the remainders expectant thereon, that a recovery be suffered of the premises; and it is thought proper (for, though usual, it is by no means necessary: see Forrester, 167) that, in order to make a good tenant of the freehold or tenant to the during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker, and that the recovery itself be suffered against this tenant to the who shall vouch John Barker, and thereby bar his estate-tail and become tenant to the fee-simple by virtue of such recovery; the uses of which estate so acquired are to be those expressed in this deed. Accordingly, the parties covenant to do these several acts, (see page viii.;) and in consequence thereof the fine and recovery are had and suffered (N° IV. and N° V.) of which this conveyance is a deed to the uses.
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“In the case of a recovery with single voucher, supposing the præcipe upon which the recovery is grounded to be brought immediately against the tenant in tail himself, who appears and vouches over the common vouchee to warranty, it is then the estate-tail of which he is actually seised at the time which is defeated; and, consequently, remainders and reversions, together with all latent droits and interests, are not barred. Secondly, if the tenant in tail levies a fine—as he usually does—preparatory to the recovery, now, the estate-tail being thus divested by the operation of the fine, the recovery which is had thereon is no longer of the old fee-tail, but of the new fee-simple which has been extracted out of it. In this case, however, as well as in the former, a sufficient recovery cannot be had with single voucher, but only with double voucher at least, though not exactly for the same reason; for in the former case, in which the recoveree or tenant to the præcipe was actually seised at the time of an estate-tail, the recovery was necessarily of that estate and nothing more; but in the latter case, in which the estate-tail was previously divested or discontinued by the fine and turned to a droit, the recoveree or tenant to the præcipe had a fee-simple, the recovery of which is good against him by way of estoppel, (Co. Litt. 352, a.,) but upon his death may be avoided by the issue by defeating the discontinuance under which it was created. As, for example, when the tenant in tail levies a fine, it operates in the first instance as a discontinuance. Suppose, then, the estate created under the discontinuance to be immediately reconveyed to the tenant in tail himself, who thereupon suffers a recovery. Now, it is clear that this recovery is not of the estate-tail, but of the estate created under the discontinuance. By the same rule, then, if the heir in tail defeats the discontinuance, (which he may well do by action, though not by entry,) the discontinuance being defeated, the tortious fee simple which the discontinuance gave rise to is necessarily determined, and consequently the recovery avoided. Co. Litt. 389, a. But when the tenant in tail is brought in as vouchee to the warranty, as in the case of a recovery with double voucher, the heir is then barred by warranty, and so are all they in remainder or reversion. For the law always supposes, upon a principle of equity, that the first vouchee recovers other lands of equal value against the second vouchee, which descend in as the estate passed by the recovery would have descended. Upon this presumption of law, which is uniformly admitted in order to give effect to common recoveries, the warranty of the ancestor not only binds the heir and bars every latent right and interest he may have in the lands recovered, but also defeats, at the same time, the remainders over. But where the ancestor has entered into no such warranty (with double voucher) there is evidently no bar to the heir so as to preclude him from his latent droit in tail, which is the recovery. And so, in all cases where there are several and distinct estates passed by the recovery, it is necessary that the parties should be all severally vouched to warranty in order to insure a good title.” Ritso, Introd. 207.—