the wife from proceeding for her dower; and in that case a purchaser would certainly be entitled to a fine (I).

In Caruthers v. Caruthers (a), Lord Alvanley, then Master of the Rolls, addressing himself to what was and what was not an equitable bar of dower to an infant, put the case of a charge in bar of dower made upon an estate with a bad title, and held that it would be no bar. Therefore, whatever opinion may be entertained on the general question, a purchaser must be satisfied of the title to the lands upon which the equitable jointure of a feme covert married under age is charged. And where the settlement rests in covenant, the purchaser should not complete his contract until the covenant be actually performed; for an alienation by the husband of the fund out of which the jointure is to arise, will be deemed an eviction of the fund, and consequently the wife will be let in for her dower (b). .

It appears from some manuscript opinions, that Mr. Fearne frequently advised a purchaser to take a fine from a vendor and his wife, although she was legally barred of her dower by settlement. To use his own words in an opinion: "It may not be improper to have a fine from Mr. H. and his wife, notwithstanding she is barred of dower by settlement. I frequently advise such a step to preserve the purchaser at any time from the difficulty of proving, or coming at such settlement; but as the fine is not necessary, it must of course be at the purchaser's own expense, if he chooses to have it."

(a) 4 Bro. C. C 500; see 5 Ves. Jun. 192.

(b) Drury v. Drury, 4 Bro. C. C. 506.n.

(I) This point does not appear to be decided either by Drury v. Drury, or Williams v. Chitty.

In the case of Pope v. Simpson (c), Lord Rosslyn appears to have held, that persons purchasing from the assignees of a bankrupt, have no right to expect more, than that the assignees should deliver over such title as the bankrupt had. This decision, however, was opposed by prior cases (d), and the general rules of equity; and in a late case Lord Eldon expressly denied the doctrine advanced by Lord Rosslyn (e): and the Master of the Rolls has since actually decided, that assignees stand in the situation of ordinary vendors (ƒ).

Formerly, where a vendor claimed under a modern will, by which the heir at law was disinherited, it was usual to require the will to be proved in equity against the heir at law (g); but this practice is now almost wholly discontinued. In the case of Colton v. Wilson (), the purchaser was in the first instance discharged from his purchase, on account of the will not being proved against the heir at law; but on a rehearing he was compelled to take the title. This decree, however, was made on the particular circumstances of the case, and the point was by no means settled. In Bellamy v. Liversidge (i), the title received the master's approbation, although the will was not proved against the heir at law; and upon exceptions to his report on that account coming on, Lord Kenyon, then Master of the Rolls, over-ruled them.

It is not unusual to require the heir at law to join in the conveyance, if his concurrence can be easily obtained; and

(c) 5 Ves. Jun. 145.

(d) Spurrier v. Hancock, 4 Ves. Jun. 667; and see Orlebar v. Fletcher, 1 P. Wms. 737.

(e) White v. Foljambe, 11 Ves, Jun. 337; and see 18 Ves. 512. (f) M'Donald v. Hanson, 12 Ves. Jun. 277.

(g) See Fearne's Posthuma, 234;

see Harrison v. Coppard, 2 Cox, 318, as to the custody of the will.

(h) 3 P. Wms. 190.

(i) Chan, 1 June, 1786, MS.; and see Wakeman v. Duchess of Rutland, 3 Ves. Jun. 233. 8 Bro. P. C. 145; sed vide Smith v.Hib. bard, 2 Dick, 780.

where

where he is a party to a conveyance in any other character, he is invariably made a conveying party, in his character of heir at law; although, in strictness, this could not be insisted upon.

If it should even be thought that a modern will must be proved against the heir at law, yet it seems clear that equity would not compel the vendor, at the suit of the purchaser, to prove the will per testes. The objection, therefore, under any construction, could only be set up by a purchaser, as a defence to a specific performance.

IV. There is a serious objection frequently taken to titles, which it may not be improper to consider in this place.

The objection to which I allude is, that an equitable rccovery is void where the equitable tenant to the precipe has the legal estate. In support of this objection, it is urged, that where the legal freehold is limited to one for life, with an equitable remainder to the heirs of his body, the estates cannot coalesce so as to make the parent tenant in tail, notwithstanding that he has the beneficial, and consequently the equitable estate for life; and therefore, upon the same principle, the legal tenant for life cannot be considered as seised of an equitable estate, distinct from his legal estate, so as to support the recovery as a good equitable recovery.

In answer to this argument, it may be said, that the reason why the equitable remainder to the heirs of the body cannot coalesce with the legal estate for life is, that the rule in Shelly's case requires both estates to be legal. This is an imperative rule of law, which courts of equity can no more depart from than they can alter the rules of descent. Equity, however, follows the law; and therefore, if both estates are equitable, they will unite in the same manner as if they were legal estates. But as Mr. Fearne, with his usual ability, observes,

x 3

observes, when both the estates are not legal, the application of a legal construction, or operation of a rule of law, which must equally affect both, seems to be excluded by one of the objects of that construction not being a subject of legal cognizance. So when both are not equitable estates, their combination seems to be out of the reach of an equitable construction to which one of the estates is not adapted (k).

Now this difficulty does not occur in the principal case. The equitable estate tail has no existence in contemplation of law, but depends wholly on the rules of equity for its support. And therefore there is no rule of law which says, that the recovery shall be void. Equity, with respect to equitable recoveries, adheres as nearly as may be to the mode of barring intails prescribed by the law. In this instance the analogy is strictly preserved, for the tenant to the precipe has the equitable estate of freehold. And if a court of equity were to hold a recovery bad, on the ground of the equitable tenant to the precipe having the legal estate, it would only make another deed necessary. The tenant for life would convey to a third person in trust for himself, before he made a tenant to the precipe, and by this simple expedient vanquish the objection.

In a manuscript opinion, given by Mr. Fearne, on this point, in which he held the recovery to be good, although the equitable tenant to the precipe had the legal estate, he first adverts to the analogy preserved between legal and equitable recoveries, and then proceeds thus: "The principle applies with no less force, where we suppose the tenant for life to be of the legal estate, for his own benefit. For then the equitable interest is involved in the legal; and of consequence all that is required by the said rule of analogy is had in his concurrence, viz. the concurrence of the person entitled to the beneficial interest or pernancy of the profits

(4) Cont. Remainders, p. 78, 5th edit.

of

of the immediate estate of freehold. If the concurrence of a person entitled to the mere beneficial interest of freehold will answer the rule of analogy to the requisite extent for barring equitable estates tail and remainders, can there be a doubt in regard to the competency of the person entitled not merely to that degree of interest, but to a comprehending greater estate, adequate even to the purpose of barring legal estates and remainders? The analogy supposes that a recovery by an equitable tenant in tail will bar the equitable estate tail and remainders, and reversion, even where, if the estate tail and remainders had been legal, such recovery would not have barred them for want of a legal tenant to the precipe; because that analogy in the one case substitutes an equitable tenant in the place of a legal one in the other. Now, can the same rule of analogy ever deny to a recovery by a tenant in tail of an equitable estate the same effect in barring his estate tail and the subsequent equitable remainders and reversion, as it would have had if all those estates had been legal? Such a doctrine would be outrunning the analogy, and the very ground for its adoption, in disabling those very persons from barring equitable estates tail and remainders, who might have barred them if they had been legal, instead of equitable. This would scarcely be reconcileable with the well-known maxim of "equitas sequitur legem."

If the objection cannot be supported upon principle, much less can it be sustained upon authority. On the one hand, it has never been said that such a recovery is void, except in the case of Shapland v. Smith (4), where Lord Thurlow is made to say, that Christopher had only an equitable estate for life, and the subsequent estate being executed, he had an equitable estate for life, and a legal remainder in tail, which could not unite; and of course, there could not be a