Common Recovery

A common recovery was a legal proceeding in England to enable an entailed estate in land (also called a fee tail) to be converted into absolute ownership, fee simple, through the use of a legal fiction. This clever legal fiction was devised by lawyers in the fifteenth century to prevent the enforcement of entails.

As a preliminary, there needed to be a conveyance of the land. The owner (in tail) of the land A conveyed it to someone else B (known as the tenant in precipe) to the intent that a third person C (known as the demandant) might sue for it. C accordingly issued a writ against B. In court, B defended his right saying (correctly) that he had acquired it from A. 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). D asked for time and failed to appear subsequently; alternatively, he dashed out of the court. In either case, the judgment was that C should recover the land, and that D should compensate B with land of equal value. 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. The result was thus that C recovered land in fee simple, which A had owned in only fee tail; thus, the entail was barred.

Occasionally, it was also necessary to bar the rights of other persons E, such as trustees holding in trust for an equitable tenant in tail; in that case A alleged that he had acquired it from E and E alleged it had come from D, but the final result was the same.

The actual consequence of a common recovery depended on what the conveyance created a tenant in precipe said (usually in its final few lines). This might be:

• to the use of A and his heirs (i.e. in fee simple)
• (if the transaction was in connection with a sale) to the use of C (in fee simple)
• (if the transaction was in connection with a mortgage) to the use of C provided that if A paid off the principal and interest then it should revert to A and his heirs.
• If the entail was barred so that the land could be resettled (on marriage or otherwise), it might be provided that a father and son could jointly appoint the property as they wished, or there might be detailed provisions as to the future interests in the land.

At the end of the proceeding, the lawyers often had an exemplification of the proceedings prepared; this was a formal transcript of the proceedings in the monarch's name and sealed with a large seal, often mounted (to preserve it) in a tin box. Unless there was a whole manor or an advowson involved, the description of the land (which may be exaggerated) merely stated the improvements: number of houses etc.; extent: acres of land; type: meadow, pasture etc.; and the location: township or parish where it was. These descriptionns are thus usually not particularly useful as historical sources. Since the purpose of the transaction cannot be known from the recovery, it is possible to say only that the vouchee dealt with the land.

In England and Wales, common recoveries were abolished in 1833; instead a disentailing deed (a successor to that creating the tenant in precipe) was enrolled in Chancery. Since 1926, entails can no longer exist as legal estates, only as equitable interests, and enrollment has become unnecessary.

Like Fines (or Final Concords), common recoveries were proceedings based upon a legal fiction in order to produce a genuine change, but without truly adverse parties. In this they differ from the use of a legal fiction in ejectment cases, where there was a genuine dispute, but one that required a legal fiction to make it justiciable.