31:
324:
434:, who stated that the common recovery began with "Taltarum's Case". It is now clear, however, that as a legal device, the common recovery predated 1472, possibly first appearing in the 1440s: Taltarum's Case added little beyond introducing, through the judges' deliberations, the device of the "double voucher", though this did not become part of the common recovery until the mid 16th century. Nevertheless it seems likely that the example of Taltarum's Case served to popularise the procedure, as the annual number of recoveries was far greater in the decade after 1472 than in the previous decade.
182:("concerning conditional gifts"), which enacted that in grants of land to a man and the heirs of his body, the will of the donor as expressed in the grant should be strictly followed. Prior to this time, judges had held that if an estate was granted to a man and the heirs of his body, and heirs were subsequently born, he had title to the land in fee simple and could do as he wished with it, including selling it, even if this was contrary to the original donor's intent. The effect of
410:
existing entails. Talcarn, in turn, conveyed it to Henry Hunt - probably without even taking possession. However, on
Humphrey Smyth's death, John Smyth, the son and heir of Humphrey's younger brother Robert, claimed possession of the land under the original entail, evicting Hunt. The case itself was concerned with Hunt's action on forcible entry against John Smyth. Hunt would be able to get a favourable judgment if he, and his lawyer
305:
start of the procedure, and the demandant then sued the tenant in praecipe rather than simply suing the owner directly, the recovery would not only bar the land passing to the owner's heirs, it would also extinguish any other entails, in addition to the claim of the original donor in the event the heirs died out. Solomon
Atkinson, in
202:
circumvent these restrictions. Its underlying principle was that an entail could be broken if the issue (i.e. the persons who would otherwise have received the land under the entail) were compensated. The compensation was, however, a fictitious one, created only for the purpose of breaking the entail.The process worked as follows:
426:
success hinged on the argument that, at the time his uncle had suffered a recovery of the land to
Talcarn, he was only in possession of the land under the later Tregoz entail to him and Jane, rather than the original Trevistarn entail: proving this would mean that John Smyth could still claim the land under the original entail.
371:
about the settlement made by John Tregoz was pleaded only as to twenty-four acres, parcel of the land in question. As to the residue the plaintiff pleaded in a more general fashion that at the time of the recovery
Humphrey Smyth was not seised of the freehold, and that therefore the recovery was void in law.
429:
The real significance of the case in later centuries lay in the principle that was extracted from the judges' arguments about how the common recovery worked, though many commentators got the details (and name) of the case itself wrong, having never seen the Plea Roll. Most authorities simply followed
186:, however, meant that if an estate was granted to a man and the heirs of his body, he could not dispose of it any other way; it had to pass to his heirs. Furthermore, if the heirs died out, the donor could claim the land back: this right was known as the "reversion". Such an estate was said to be in "
370:
and his fellow justices of the bench. The writ stated that John
Arundel, the lord of the fee, had remised his court. The demandant in it was Thomas Talkarum or Talcarum. His name is written many times, now with a k, now with a c, never with a t. The vouchee was Robert Kyng. The well-known rejoinder
299:
The exact principle by which the entail was barred was merely inferred from the judges' reasoning in
Taltarum's Case, rather than being an explicit part of their judgment. The four judges had been considering what effect a recovery would have when multiple entails existed: would it bar all entails,
388:
Talkarum, the recoveror, having obtained judgement, did nothing more during the lifetime of
Humphrey Smyth, the tenant in the action. Humphrey died seised: on his death Robert Smyth entered, and on Robert's death John Smyth entered. Then Talkarum entered on John and enfeoffed Henry Hunt, then John
304:
at the time? The conclusion they drew was that it would only bar the entail under which the defendant was then in possession. Based on this reasoning, lawyers had developed the device of the "double voucher": if the owner in tail conveyed the land to someone else, the "tenant in praecipe", at the
425:
in the descender, was going on at the same time as the forcible entry action by Hunt against Smyth, and that elements of the pleadings in the descender action became included with the report of the forcible entry action. This might explain the confusing and obscure nature of the reports. Smyth's
375:
Maitland noted that at the time the report, characterised by a "rambling obscurity", was written up in the Year Book, the judgment did not actually seem to have been given, and could not locate the eventual record of judgment in the case itself. Puzzled by the "hypothetical state of facts" about
201:
system by preventing land passing out of a family's ownership, in the following centuries, landowners became increasingly frustrated with the restrictions imposed by entails. The common recovery, the outline of which had probably been established in the mid fourteenth century, was developed to
409:
to
Humphrey's heirs. Humphrey's wife died childless, and he suffered a recovery of the land to another man, Thomas Talcarn (the person whose name was afterwards misspelt "Taltarum"). At this point, Humphrey probably believed that the recovery, in accordance with usual practice, would bar both
313:
in the reign of Ed. 4 the judges determined, that even a nominal and fictitious recompense, descending to the issue in tail, should be an effectual bar, not only to the issue in tail, but also to the persons entitled in remainder and reversion. This, though not expressly so decided, is the
366:, and the plaintiff sued "tam pro domine Rege quam pro seipso". The original feoffor mentioned in the defendant's plea was Thomas Trevistarum. In the plaintiff's replication the famous recovery is alleged to have taken place in the Easter term of 5 Edward IV, before
389:
entered and cast out Hunt, and this was the forcible entry complained of
Leaving to Cornishmen the question whether Talkarum and Trevistarum are possible names, I cannot refrain from the remark that the name Henry Hunt is beautifully simple.
401:. On William Smyth's death, his eldest son and heir Humphrey took possession of the land under the entail. Humphrey Smyth then conveyed part of the land to a man called John Tregoz, probably as part of a
154:, was spelt Talcarn, Talcarum, or Talkarum, in the original documents, though never in the form "Taltarum" under which the case became famous. The case would be referred to as
139:
meant that in succeeding centuries the common recovery's procedures, and even the names of some of the fictitious individuals involved in them, were modelled on the case.
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had owned in only fee tail. Being held in fee simple, the land could now be freely sold or transferred or a new settlement made, thus defeating
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Although the principles of the common recovery had existed before 1472, the extensive discussion of these principles by the judges in
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asked for time and failed to appear subsequently; alternatively, he dashed out of the court. In either case, the judgment was that
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41:
650:
414:, could demonstrate that the recovery to Talcarn had destroyed the operation of the entail originally created by Trevistarn.
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with no property at all, so that the judgment against him was valueless, and it was never enforced. The result was thus that
323:
402:
30:
327:
Thomas
Littleton, J.C.P., was one of the four judges in Taltarum's Case, which took place at the time he was writing his
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108:, with decisions being handed down in 1465 and 1472. The case was long thought to have established the operation of the
73:
173:
233:, saying he had been unjustly dispossessed of the land by a (fictitious) individual usually named as "Hugh Hunt".
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112:, a collusive legal procedure that was, until finally abolished in 1833, an important element of English law of
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314:
inference drawn from the determination of the judges in the celebrated case 12 Ed. 4, known as Taltarum's case.
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363:
93:
entailed estates (fee tail); common recovery; barring the entail (conversion to normal estate of fee simple)
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346:, who located it on the De Banco Roll for Mich. 12 Edward IV, m.631 (1472). He noted that it concerned a
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381:
77:
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was as follows. A man called Thomas Trevistarn granted land in Portreath to one William Smyth in
342:, rather than on the original records. The true history of the case was eventually researched by
225:, and usually an estate trustee or the purchaser, if the land was being sold) might sue for it.
209:, wished to convert it from fee tail to fee simple. Accordingly, he conveyed it to someone else
252:) was called upon to vouch for his right to the land. He alleged that he had acquired it from
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406:
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109:
405:, and Tregoz accordingly reconveyed it back entailed on Humphrey and his wife Jane, with
146:, this name was in fact a misspelling: it was originally entered in the Plea Rolls as "
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The plaintiff was Henry Hunt; the defendant was John Smyth. The action was on the
194:, to cut, as the inheritance was cut down and confined to the heirs of the body.
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Spinosa, C. D. "The Legal Reasoning Behind the Collusive, Common Recovery" in
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150:". The name of the individual referred to, one Thomas Talcarn of Godcote in
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http://aalt.law.uh.edu/AALT2/E4/CP40no844/aCP40no844fronts/IMG_1229.htm
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Baker and Milsom Sources of English Legal History: Private Law to 1750
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384:- in the forcible entry case had been arguing, Maitland determined:
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had been based on two slightly contradictory reports written in the
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The Fee Tail and the Common Recovery in Medieval England: 1176–1502
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The Fee Tail and the Common Recovery in Medieval England: 1176–1502
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defended his right saying (correctly) that he had acquired it from
128:, which could not be freely sold or disposed of, into an estate in
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While the statute had originally been intended to strengthen the
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It also appears that a counter-action by Smyth - represented by
116:. By means of a complex legal fiction, a recovery converted a
260:, and whose part was usually played by the court crier).
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Legal Theory and Legal History: Essays on the Common Law
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is the name given to an English legal case heard in the
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More recent research has shown that the background of
309:(1839), stated the facts (as then understood) thus:
176:. The statute included a clause known by the title
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458:The Collected Papers of Frederic William Maitland
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364:statute of 5 Richard II against forcible entry
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158:if modern naming conventions were followed.
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51:Easter Term 1465 and Michaelmas Term 1472
300:or only that of which the defendant was
288:recovered the land in fee simple, which
525:The Theory and Practice of Conveyancing
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307:The Theory and Practice of Conveyancing
636:Court of Common Pleas (England) cases
538:The American Journal of Legal History
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172:Entails had been established by the
276:with land of equal value. However,
460:, Vol 2, Cambridge UP, 1911, p.310
268:should recover the land, and that
229:accordingly issued a writ against
14:
485:, Sweet & Maxwell, 2012, p.72
205:The owner (in tail) of the land,
142:Although traditionally known as
334:Legal authorities' comments on
162:Principle of barring the entail
16:15th century English legal case
1:
421:- against Hunt, for writ of
280:was chosen because he was a
190:", derived from the French
174:Statute of Westminster 1285
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552:& subsequent membranes
540:, Vol. 36, No. 1 ,1992, 80
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350:and 100 acres of land in
344:Frederic William Maitland
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28:
646:15th century in case law
483:The Law of Real Property
294:De donis conditionalibus
179:De donis conditionalibus
570:Fisher (ed) 1911, p.312
561:Fisher (ed) 1911, p.311
256:(a person known as the
72:Sir Richard Choke, Sir
59:Y. B. 12 Edw. IV. 19-21
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358:. Maitland continued:
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651:English land case law
498:, Black, 1987, pp.147
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106:Court of Common Pleas
42:Court of Common Pleas
527:, Vol 1, 1839, p.216
403:marriage settlement
329:Treatise on Tenures
319:History of the case
78:Thomas de Littleton
332:
272:should compensate
215:tenant in praecipe
619:Biancalana, p.261
607:Biancalana, p.272
582:Biancalana, p.274
472:, OUP, 2010, p.68
124:property held in
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630:Categories
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236:In court,
166:See also:
130:fee simple
407:remainder
382:Littleton
352:Portreath
340:Year Book
223:demandant
423:formedon
399:fee tail
356:Cornwall
348:messuage
188:fee tail
184:De donis
152:Cornwall
126:fee tail
122:copyhold
118:freehold
88:Keywords
56:Citation
250:vouchee
192:tailler
48:Decided
456:(ed).
302:seised
199:feudal
76:, Sir
378:Bryan
38:Court
430:Sir
120:or
632::
612:^
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296:.
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80:,
290:A
286:C
278:D
274:B
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246:A
242:A
238:B
231:B
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211:B
207:A
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