Recovery - Definition - Law Dictionary Home Dictionary Definition recovery

Definition :

Recovery, the obtaining a thing by judgment or trial.

The regaining or restoration of something lost or taken away, Black's Law Dictionary, 7th Edn., p. 1280.

A true recovery is an actual or real recovery of anything, or the value thereof, by judgment; as if a man sue for any land or other thing movable or immovable, and gain a verdict or judgment.

A feigned recovery. An abolished common assurance by matter of record, in fraud of the statute De Donis, whereby a tenant-in-tail in possession enlarged his estate-tail into a fee-simple and so barred the entail, and all remainders and reversions expectant there-on, with all conditions and collateral limitations annexed to them, and subsequent charges sub-ordinate to the entail. But incumbrances on the estate-tail equally affected such fee-simple, and any estate or interest prior to the entail remained undisturbed.

This assurance consisted of two parts: (1) The recovery itself, which was a fictitious rea action in the Court of Common Pleas, carried on to judgment, and founded on the supposition of an adverse claim; and (2) the recovery-deed, which was partly a preparatory step to suffering the recovery, and partly a declaration of the uses when suffered.

This method barring an estate-tail by a fictitious real action was based upon (a) the doctrine that the tenant-in-tail could sell the entailed lands for an estate in fee-simple, provided that judgment was obtained in favour of the tenant-in-tail and his heirs against some one for lands of equal value, and (b) the law of warranty as applied in actions for recovery of land. The procedure in such an action for the recovery of land was as follows: X. brought a writ of recovery against Y. in respect of land which Y. had bought from Z. Y. called upon Z. to prove that he had had a good title when he sold to Y. (this was called 'vouching Z. to warranty'). If Z. failed to prove that he had had a good title at the time of the sale, judgment was given for X. against Y. and a judgment against Z. for lands of equal value was also given in favour of Y.

To bar the entail a tenant-in-tail adopted the above procedure by means of a fictitious and collusive action. A., the tenant-in-tail, procured a friend D. (the Demandant) to bring an action for recovery of land against him. A. pretended that he had bought the land from C. and vouched C. to warranty. C. was a man of no substance (generally the crier of the Court), who was willing to allow a judgment to be given against him. C. admitted, contrary to the fact, that he had sold the land to A. and craved leave to 'imparl with him,' i.e. to consult with him outside the Court. C. failed to return, and judgment was therefore given in favour of D. against A. and in favour of A. and his issue for land of equal value against C. D. becoming thus possessed of the fee-simple conveyed the land in fee-simple to A. or dealt with it as directed by him. This right to suffer a common recovery was considered as an incident of an estate-tail. In later times the proceedings became more complicated; it was found inexpedient that the action should be brought against the tenant-in-tail himself, and so another person was brought into the action. The land were first conveyed by the tenant-in-tail to a friend, the tenant to the pr'cipe (so-called because he was to be served with the pr'cipe or writ). The demandant then brought the action against the tenant to the pr'cipe; the latter vouched the tenant-in-tail to warranty; he in his turn vouched the Court crier (the common vouchee) to warranty. The Court crier admitted (untruly) that he had sold the land to the tenant-in-tail and craved leave to imparl with him outside the Court. In his absence judgment was given by default that the lands belonged to the demandant in fee-simple and that the common vouchee must give lands of equal value to the tenant-in-tail and his heirs. See for example, Taltarum's case, YB 12 Edw 4 (19) and Tudor's Leading Cases, 3rd Edn., p. 695.

This was called a recovery with double voucher, and effectually barred the entail, with every latent interest and all reversions and remainders expectant thereon. The only possible case in which a remainder with treble voucher was necessary was in the instance in which a tenant-in-tail created an entail derived out of his own, and the two entails were, in point of estate or of right existing at one time indistinct persons, and both entails were to be barred.

To perfect the legal title, and to give a seisin to the demandant, a writ of habere facias seisinam must have been issued after judgment, and seisin duly delivered to him, whereupon the uses arose. This writ was returned by the sheriff, and the proceedings exemplified by the clerk of the Court for the purpose of proving the suffering of the recovery. In a recovery deed the proper parties, either alone or jointly with other persons, as circumstances might have required, were: (1) the person who had the immediate freehold; (2) the intended vouchee; (3) the intended tenant; and (4) the intended demandant. See Williams on Real Property; 1 Shep. Touch. C. 3; and 1 Pest. Conv. c. 1; 1 Hall. Cons. Hist. c. i. 12. An estate-tail might also be barred by a fine (q.v.). A friend brought an action of recovery against the tenant-in-tail. The action was then settled upon the terms that the friend should have the lands in fee-simple and that the tenant-in-tail should be paid a sum of money as consideration. This compromise was entered on the rolls of the Court. The effect of a fine varied from time to time, but eventually it became conclusive not only against the tenant-in-tail but against his issue, but inoperative as to remainders and reversions.

These fictions were abolished by the (English) Fines and Recoveries Act, 1833 (3 & 4 Wm. 4, c. 74), which substituted a short deed, duly enrolled, as the mode of barring an estate-tail. See TAIL.