Common recovery

A common recovery was a legal proceeding in England that enabled lawyers to convert an entailed estate (a form of land ownership also called a fee tail) into absolute ownership, fee simple. This was accomplished through the use of a legal fiction devised by lawyers in the fifteenth century to prevent the enforcement of entails. It was based on the reasoning of the judges in a 1472 case usually known as Taltarum's Case.

Entails were originally designed to keep ownership of land within a family. Thanks to the effects of the statute De donis conditionalibus, the intent of the entail could not be broken, which meant that land in fee tail could not simply be sold, transferred, or mortgaged, as whatever the current owner did with it, ownership would automatically pass on their death to those specified by the entail. While entails performed a valuable function in the 13th century, when De donis conditionalibus was enacted, by the 15th century, changes in social and economic conditions meant that landowners were more concerned with being able to freely sell, convey or mortgage their land. It was in this time that the common recovery was devised as a way of circumventing De donis conditionalibus.

The common recovery was intended to turn land held in fee tail into land held in fee simple, and exploited elements of existing legal procedures to achieve this.

As a preliminary, there needed to be a conveyance of the land. The owner (in tail) of the land A conveyed it to someone else B (known as the tenant in precipe) to the intent that a third person C (known as the demandant) might sue for it. C accordingly issued a writ against B. In court, B defended his right saying (correctly) that he had acquired it from A. A (now called the vouchee) was called upon to vouch for his right to the land. He alleged that he had acquired it from D (a person known as the common vouchee). D asked for time and failed to appear subsequently; alternatively, he dashed out of the court. In either case, the judgment was that C should recover the land, and that D should compensate B with land of equal value. However, D was chosen because he was a 'man of straw' with no property at all, so that the judgment against him was valueless, and it was never enforced. The result was thus that C recovered land in fee simple, which A had owned in only fee tail; thus, the entail was barred.

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