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Common Recovery

Like a final concord, a common recovery looks impressive and important, but does not really provide much useful information. It was the product of a 'collusive action' - a fake legal procedure in the courts. The court was usually the Court of Common Pleas, but manorial courts could also deal with common recoveries. Common recoveries were used to break entails (conditions stipulated in wills or settlements which limited the descent of freehold land to certain individuals) and transfer land. Once the common recovery had been achieved ('suffered' in legal language), the land reverted to fee simple. This enabled it to be sold to somebody else, mortgaged, or settled in a new way.

Common recoveries were abolished by the Fines and Recoveries Act 1833. After that date, a simple deed of disentailment was all that was required to break an entail.

Purpose

Transfer of real property (freehold or copyhold land) by judgement of a court. The main purpose was to bar entails, remainders and reversions. More details about entails are given in the section of this Skills unit relating to settlements

Features of common recoveries

  • 15th century-1833
  • very large
  • written on parchment
  • written in archaic court hand up to the mid-eighteenth century
  • written in Latin until 1733
  • vague description of land, e.g. 2 messuages and 150 acres of land in the parish of X
  • Often appears in the form of an 'Exemplification of a Common Recovery'. This is very attractive official copy of the record from the Court of Common Pleas, produced after the details were enrolled and examined. Includes a portrait of the monarch, and the Great Seal

The main people involved were:

  • the 'tenant in tail'. The person actually in possession of the land, who could not sell it because of an entail
  • the 'tenant to the praecipe', or the 'tenant to the freehold'. This was normally a lawyer, agent or other associate of the tenant in tail
  • the 'demandant'. The person who would own the land at the end of the court procedure. This would be the purchaser if the land was being sold, or a trustee for the tenant in tail if the intention was to create a new settlement

The procedure surrounding a common recovery was complex, but was the same every time:

1. A deed known as a 'deed to make a tenant to the praecipe', or a 'deed to lead the uses of a common recovery', was executed. This was a simple conveyance of the land from the tenant in tail to the tenant to the praecipe. The deed gave details of why the land was being conveyed and what the common recovery was intended to achieve. It also named the person who would play the part of the demandant. This deed may or may not have survived in the deed bundle.

2. Everything from here on is recited and recorded in the common recovery. The demandant initiated a court action to have the land recovered to him. He issued writs of 'Quod Ei Deforceat' and 'Entry Sur Disesin En Le Post' against the tenant to the praecipe. In these writs he demanded the return of the land, claiming that he had been unjustly dispossessed of them in the past 30 years by an individual usually called Hugh Hunt. The land itself is only very vaguely specified. Often just the numbers of messuages or acres of land, and the name of the parish are given.

3. The tenant to the praecipe appeared in court and 'vouched to warranty' the tenant in tail. In other words, he stated that he received the land from the tenant in tail, and called on the tenant in tail to warrant (prove) his title.

4. The tenant in tail, or an attorney representing him, then appeared in court and 'vouched to warranty' a further person, called the 'common vouchee'. The demandant then demanded the lands back from the common vouchee.

5. The common vouchee then appeared personally in court. The part of the common vouchee was often played by the court crier, who sometimes went under the fictitious name John Doe, Richard Rowe, Moses Mills, Thomas Cut or Ralph May. In the example shown below, he is called George Humphrys. The vouchee defended his right to the land and denied that Hugh Hunt had dispossessed the demandant. He then 'put himself on the country' - that is, agreed to abide by the judgement of the court.

6. The demandant asked for leave to 'imparl' (talk together in private) and left the courtroom along with the common vouchee. The demandant returned on his own. The common vouchee was solemnly summoned to appear again, but did not return. He was therefore declared to be in contempt of court, and could not defend his title to the land.

7. Therefore, the judge ordered that the demandant should recover the land from the tenant to the praecipe. The tenant to the praecipe would be compensated with land of equal value from the first vouchee (the tenant in tail), and the first vouchee should be compensated with land of equal value from the common vouchee. The common vouchee, being a poor employee of the court, would not be able to supply such land and put himself 'in mercy'. No such compensatory payments of land were actually expected to be made.

8. Now that the demandant was in legal possession of the fee simple of the land, he was at liberty to do what he liked with it. In practice, the demandant had been in cahoots with the tenant in tail from the start. If he was a trustee for breaking the entail, he would soon afterwards convey the land back to the tenant in tail. As the land was now held in fee simple, with no conditions such as entails attached to it, it could be sold on by the tenant in tail, mortgaged, or re-settled with a new entail. Alternatively, if the demandant was the purchaser of the land, he kept it for himself

Various other deeds and documents were also produced in association with a common recovery. These help to explain the reasons for suffering the common recovery:

  • 'Deed to make a tenant to the praecipe': deed conveying the land to the tenant to the praecipe
  • 'Deed to lead the uses of a common recovery': deed stating in detail what is to be done and why
  • 'Deed to declare the uses of a common recovery': similar, but produced after the recovery was suffered

Quick check-list for reading and understand common recoveries

  • The 'demandant' is the person who will benefit from the breaking of the entail - the proposed purchaser, or the heir
  • The first person the demandant demands the land from is the 'tenant to the praecipe' - a trustee, lawyer or other associate of the real owner of the land. The land was recently conveyed to him for the specific purpose of suffering a common recovery
  • The first vouchee is the 'tenant in tail' - the actual owner of the land
  • Everyone is colluding in the action. It is not a real court case
  • The property specified gives only a vague idea of the real land involved
  • Other deeds of around the same date and involving the same people are more likely to tell you what the real point of the transaction is. Look for feoffments, lease and releases, marriage settlements, deeds to make a tenant to the praecipe, and deeds to lead the uses of a common recovery

Example

Ne D 2622 - Exemplification of a common recovery of messuages and land in East Markham and Tuxford, Nottinghamshire; 1817

Deed Ne D 2622

View this deed

In this common recovery, Thomas Ward Denison is the demandant; James Hall the tenant to the praecipe; Sir Thomas Woollaston White the vouchee (tenant in tail); and 'George Humphrys' the common vouchee. The lease and release from Sir Thomas Woollaston White to James Hall, to make him a tenant to the praecipe, is dated 8 April 1817 and numbered Ne D 2619-2620. The deed to make a tenant to the praecipe 'leads the uses' of the common recovery and states that the land is to 'enure to' [belong to] Henry Gally Knight and Francis Ferrand Foljambe, in trust for sale. The land was eventually bought by the Duke of Newcastle.

A full transcription of the common recovery is given below, with the operative words highlighted.

Transcription

George the Third by the Grace of God of the united Kingdom of Great Britain and Ireland King Defender of the Faith To all to whom these presents shall come Greeting Know Ye that among the Pleas of Land inrolled at Westminster before Sir Vicary Gibbs Knight and his Brethren our Justices of the Bench of Easter Term in the fifty seventh year of our reign upon the 47th and 48th Rolls it is thus contained Elsewhere as it appears of this same Term upon the 46th Roll it is thus contained Nottinghamshire Thomas Ward Denison in his proper person demands against James Hall twenty Messuages ten Gardens four hundred and five acres of Land four hundred and five acres of Meadow and four hundred and five acres of Pasture Common of Pasture for all Cattle and Common of Turbary with the appurts in the Parishes of Great Markham otherwise East Markham and Tuxford as his right and inheritance and into which the said James hath not Entry but after the disseisin which Hugh Hunt thereof unjustly and without Judgment hath made to the aforesaid Thomas Ward within thirty years and whereupon he says that he was seised of the Tenements and Commons aforesaid with the appurts in his demesne as of the fee and right in time of Peace in the time of our Lord the present King by taking the profits thereof to the value &c and into which &c and thereof he brings suit &c And the said James in his proper person comes and defends his right when &c and thereupon to warrant Sir Thomas Woollaston White Baronet to be summoned in the County aforesaid let him have him here on the Morrow of the ascension of the Lord by the aid of the Court &c the same day is given to the parties aforesaid here &c and upon this the said James appoints in his stead Robert Baxter and Edward Horton his Attornies jointly and severally against the said Thomas Ward to gain or lose of the plea aforesaid &c at which day comes here as well the said Thomas Ward in his proper person as the said James by the said Robert Baxter his Attorney and the said Sir Thomas Woollaston being summoned &c likewise comes by John Brownley his Attorney and freely warrants the Tenements and Commons aforesaid with the appurts to the said James &c and hereupon the said Thomas Ward demands against the said Sir Thomas Woollaston Tenant by his own warranty the Tenements and Commons aforesaid with the appurts in manner aforesaid &c and whereupon he says that he was seised of the Tenements and Commons aforesaid with the appurts in his demesne as of fee and right in the time of Peace in the time of our Lord the present King by taking the profits thereof the value &c and into which &c and thereof he brings suit &c And the said Sir Thomas Woollaston Tenant by his own warranty defends his right when &c and thereupon further vouches to warrant George Humphrys who is present here in Court in his proper person and freely warrants to him the Tenements and Commons aforesaid with the appurts &c and hereupon the said Thomas Ward demands against the said George Tenant by his own warranty the Tenements and Commons aforesaid with the appurts in manner aforesaid &c and whereupon he says that he was seised of the Tenements and Commons aforesaid with the appurts in his demesne as of fee and right in the time of Peace in the time of our Lord the present King by taking the profits thereof to the value &c and into which &c and thereof he brings suit And the said George Tenant by his own warranty defends his right when &c and says that the said Hugh did not disseise the said Thomas Ward of the Tenements and Commons aforesaid with the appurts as the said Thomas Ward by his writ and declaration above doth suppose and of this he putteth himself upon the Country &c And the said Thomas Ward whereupon craves leave to imparl and he hath it &c and afterwards the said Thomas Ward comes again here into Court in this same Term in his proper person and the said George although solemnly called cometh not again but departed in contempt of the Court and maketh default Therefore it is considered that the said Thomas Ward recover his seisin against the said James of the Tenements and Commons aforesaid with the appurts and that the said James have of the Land of the said Sir Thomas Woollaston to the value &c and further that the said Sir Thomas Woollaston have of the Land of the said George to the value &c and the said George in mercy

&c and hereupon the said Thomas Ward prays the Kings writ to be directed to the Sheriff of the County aforesaid to cause full Seisin of the Tenements and Commons aforesaid with the appurts and be delivered to him and it is granted to him returnable here on the Morrow of the Holy Trinity &c All and singular which Premises at the request of the said Thomas Ward by the Tenor of these presents we have commanded to be exemplified In Testimony whereof we have caused our Seal appointed for sealing Writs in the Bench aforesaid to be fixed to these presents Witness Sir Vicary Knight at Westminster the nineteenth day of May in the fifty seventh year of our reign.

Hall Ross and Brownley

At which day the said Thomas Ward comes here into Court in his proper person and the Sheriff namely Thomas Blackborne Esquire now returns that he by virtue of the said writ to him directed on the twenty second day of May last past did cause full Seisin of the Tenements and Commons aforesaid with the appurts to be delivered to the said Thomas Ward as by the said Writ he was commanded &c.

 

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