Common Recovery

A judgment recovered in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in the suit, which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee simple in the recoveror. A common recovery is a kind of conveyance, and is resorted to when the object is to create an absolute bar of estates tail, and of the remainders and reversions expectant on the determination of such estates. 2 Bl. Comm. 357. Though it has been used in some of the states, this form of conveyance is nearly obsolete, easier and less expensive modes of making conveyances, which have the same effect, having been substituted. 2 Bouv. Inst, notes 2092, 2096, 7 N. H. 9; 9 Serg. & R. (Pa.) 390; 2 Rawle (Pa.) 168; 4 Yeates (Pa.) 413; 1 Whart. (Pa.) 151; 6 Mass. 328.

A judgment recovered in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in the suit, which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoverer. A common recovery is a kind of conveyance, and Is resorted to when the object Is to create an absolute bar of estates tail, and of the remainders and reversions expectant on the determination of such estates. 2 Bla. Com. 357. Though it has been used in some of the states, this form of conveyance is nearly obsolete, easier and less expensive modes of making conveyances, which have the same effect, having been substituted; 2 Bouvler, Inst. nn. 2092, 2096; Frost v. Cloutman, 7 N. H. 9, 26 Am. Dec. 723; Lyle v. Richards, 9* S. & R. (Pa.) 322; Stump v. Findlay, 2 Rawle (Pa.) 16S, 19 Am Dec, 632; Sharp v. Thompson, 1 Whart (Pa.) 151; Dow v. Warren, 6 Mass. 328.

In conveyancing. A species of common assurance, or mode of conveying lands by matter of record, formerly in frequent use in England, but recently abolished by statute 3 & 4 Will. IV. c. 74. 2 Bl. Com. 357. 1 Steph. Com. 530. It was in the nature and form of an action at law, carried regularly through, [in which respect it differed from a fine, which was in the form of a suit compromised,] and ending in a recovery of the lands against the tenant of the freehold; which recovery, being a supposed adjudication of the right, bound all persons, and vested a free and absolute fee simple in the recoveror. 2 Bl. Com. 367. 1 Steph. Com. 624. It was called a common recovery to distinguish it from a real adjudication. Id. ibid. 6 Cruise Dig. 269. Common or feigned recoveries were first invented or introduced by the clergy, in order to evade the statute of mortmain. 2 Bl. Com. 271. 2 Reeves' Hist. Eng. Law, 166. See Mortmain. To effect this purpose, the religious houses used to set up a fictitious title to the land which it was intended they should have, and brought an action to recover it against the tenant, who by fraud and collusion made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. 2 Bl. Com. 271. These common recoveries were afterwards employed as a contrivance to elude the statute De Donis, and as a means of barring estates tail, and becoming on this account more and more general, they were finally recognized as a regular mode of conveyance; retaining at the same time, however, all the forms of a judicial proceeding as they had when they were real actions. Crabb's Hist. Eng. Law, 540, 641. 2 Bl. Com. 117. 1 Steph. Com. 236. 4 Kent's Com. 13, 497. Common recoveries were formerly in use in some of the United States, but have generally become obsolete, where they have not been expressly abolished. They were abolished by statute in New-Jersey in 1799, and in New-York by the Revised Statutes. 2 R. S. [343,] 266, § 24. In Pennsylvania and North Carolina they appear to be still recognized as lawful conveyances. 1 Kent's Com. 497, note. See U. S. Dig. & Supplement, Common Recovery.

ede Recovery.