Taltarum's Case

Taltarum's Case is the name given to a 15th-century English legal case in the Court of Common Pleas that was generally thought to have established the operation of the common recovery. The latter was a collusive legal procedure designed to evade the statute De donis conditionalibus, and was for centuries an important element of English law of real property. The recovery operated to break an entail on freehold or copyhold property held in fee tail - which could not be freely sold or transferred - leaving it in fee simple, so that it could be freely sold or a new settlement arranged. Although recoveries had been used before the case to bar entails, the judges' extensive discussion of the principles involved meant that in succeeding centuries the common recovery's procedures, and even the names of some of the fictitious individuals involved in them, were modelled on the case.

Although traditionally known by the name Taltarum's Case, it was entered in the Plea Rolls as "Talcarn's Case", and it could be represented in contemporary style as Hunt v Smyth. The name of the individual referred to, one Thomas Talcarn of Godcote in Cornwall, was spelt Talcarn, Talcarum, or Talkarum, in the original documents, though never in the form "Taltarum" under which the case became famous.

The essential principle behind the common recovery, the outline of which had probably been established in the mid fourteenth century, was that an entail could be broken if the issue (i.e. the persons who would otherwise have received the land under the entail) were compensated. The process worked as follows. The owner (in tail) of the land, A, wished to convert it from fee tail to fee simple. Accordingly, he conveyed it to someone else B (known as the tenant in praecipe, usually a lawyer acting for the owner) to the intent that a third person C (known as the demandant, and usually an estate trustee or the purchaser, if the land was being sold) might sue for it. C accordingly issued a writ against B, saying he had been unjustly dispossessed of the land by a (fictitious) individual usually named as "Hugh Hunt". 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, and whose part was usually played by the court crier). 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; the entail was barred. The land could now be freely sold or transferred or a new settlement made, thus defeating De donis conditionalibus.

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