Common recovery

A: owner of entailed land, the vouchee

B: person to whom the entailed land is conveyed before the common recovery begins, the tenant in præcipe

C: intended owner of the land in fee simple, the demandant

D: legal stooge who vouches to warranty and defaults, the common vouchee

HH: (fictitious) person whom C claims has occupied the land, usually goes by the name Hugh (or Humphrey) Hunt, the disseisor

A owned entailed land. He wanted to pass it to C for C's use in perpetuity. C could either be a trustee of the estate (if the aim was simply to break the entail) or the purchaser (if the land was being sold). Because of point 1, no contract or legal action between A and C could achieve this. A third party, B, needed to be inserted between A and C. B was usually a lawyer acting for A and all the parties to the ensuing legal actions colluded to achieve the underlying aim.

A conveyed the entailed land to B with an instruction as to how the land was to be used. 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 aim was to enable the land to 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.

C now issued a writ against B, saying he had been unjustly dispossessed of the land by HH. B defended his right to the land, saying (correctly) that he had acquired it from A. A was called upon to vouch to warranty for the land. This meant that A was being asked to provide a legal guarantee of B's possession of the land. He did so, thereby laying himself open to providing redress if his warranty proved defective. A is often referred to as the vouchee because the court vouches him (i.e. asks him to appear) to warranty for the land.

A appeared in court and called D to warrant ownership of the land. D appeared in court, disputed HH's occupation of the land and "put himself on the country", i.e. agreed to accept the court's judgment. By so doing, he took from A the legal liability to provide redress if his warranty proved defective.

C, who was also in court, now asked for an adjournment to imparl with the other parties, in order to seek an amicable settlement. If it was granted, C subsequently appeared but D did not. If the adjournment wasn't granted, D dashed out of the court.

D was held to be in contempt of court and so had defaulted on his warranty. This led to the judgment that C should recover the land and that D should compensate B with land of equal value (see point 2).

Importantly, the judgment that C should recover the land was given as a final judgment. This barred any further litigation on the matter. If A had defaulted without bringing D into the case, the judgment would have been a common judgment against him. This would have allowed A's heirs to litigate against C or to reclaim the land after A's death (see point 1).

The other part of the judgment (which was given as a common judgment) was that D should compensate B with land of equal value. But D, although he might have money, had no land. So that part of the judgment was not enforced. There was nothing which B could gain (if he chose to renege on his part in the collusion) in pursuing D for land which he did not possess. Nor, for that matter, could the heirs to A's entail get the land from D, although they too had the right to sue him for it. Indeed, it was this theoretical right which enabled the judges to make the judgment against B final (rather than common), as it meant that the interests of all the parties, including the heirs to the entail, were protected.

The result was that C recovered the land from B in fee simple despite A's having owned it only in fee tail. Being held in fee simple, the land could now be freely sold or transferred or a new settlement made, thus defeating De donis conditionalibus.

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.

Exemplification of Common Recovery by William Brown of Ravensden, Bedfordshire at Court of Common Pleas, Westminster,1803

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 descriptions 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.[1]

In the earliest recoveries, different people took the role of D. Some of the defaults may have occurred naturally, e.g. by death or incapacity of the warrantor to attend court. But from 1470 a single person, Robert King acted in most recoveries. The defaults were being manufactured routinely. Robert King was succeeded in the 1480s by Dennis Guyer, who established a monopoly. He became known as the common vouchee and the legal process as common recovery. In this context common means "belonging to the community", i.e. everyone who wanted to bring an entail to an end could pay Dennis Guyer four pence[4] to be their vouchee. In later centuries the common vouchee was often the court crier and could appear under a fictitious name.