
    [Philadelphia,
    January 25,1836.]
    SHARP against THOMPSON.
    
      IN ERROR.
    
    1. A testator devised as follows ; — “ I give to my son, T. N., all my house- and lot situate in Spruce Street, Philadelphia, as soon as he shall arrive at the age of twenty-one years, him and his lawful heirs for ever; and in case of his death, without lawful issue, then said house and lot to be sold to the best advantage, and the amount thereof equally divided among my surviving children.” Held, that T. N. took an estate tail.
    2. A tenant in tail by indenture of bargain and sale,-dated the 23d of November, 1797, and acknowledged on the 24th of the same month, in consideration of $2218, conveyed the estate to B. and C. his wife, their heirs and assigns, with a covenant for further assurance. By another deed of bargain and sale, dated the 24th of November, 1797, and acknowledged on the same day, A., in consideration of five shillings, and for the purpose of barring the estate tail, &e., conveyed the same estate to B. and his heirs, to the intent and purpose that B. should become tenant of the freehold, and be seized thereof, until a common recovery, with single voucher, should be had, &e., and it was covenanted that A. should, before the end of the next term, permit and suffer B. to sue forth a writ of entry, &e., against him (A.) in the Court of Common Pleas, &c., so that judgment might be thereupon had against him (A.), &c.; and the uses of the said recovery were declared to be, that B. and his heirs should stand seized of the premises, to the use of the said B., his heirs and assigns, &c. On the same 24th of November, A., by letter of attorney, reciting that he was about to proceed on a voyage by sea, appointed two persons his attorneys, to appear for him in the said recovery, declaring the same and the uses thereof as in the last mentioned deed. A writ of entry, sur disseisin, &e., tested the 9th of December, 1797, issued, at the suit of B., demandant, against A., tenant, returnable at the March term following of the Court of Common Pleas'; at which term a common recovery, with single voucher, was suffered; and a writ of seisin, tested the 9th of March, 1798, issued accordingly. On the 19th of December, 1797, B., with C. his wife, in consideration of $2218, conveyed the premises to D. in fee. In an ejectment (instituted in 1829) by the heir in tail of A., against a purchaser under D., it was held, that the second deed was to be considered a nullity; that the first deed was to be taken as declaring the uses of the recovery; and that the recovery was well suffered, and operated to vest the estate in B. and his wife, to the use of their vendee.
    This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Samuel Thompson and Ann, his' wife, (in right of the said Ann,) against Hannah Taylor, to recover possession of a house and lot of -ground in Spruce Street, -near Second Street, in the City of Philadelphia.
    Samuel Thompson and Hannah Taylor both died after the commencement of the suit.
    On the trial, in the court below, a special verdict was rendered, finding the following facts, viz.:
    “ That Thomas Newark, sen., died on the day of December, 1786, seized in fee of a certain house and lot in Spruce Street, in the City of Philadelphia — the premises for the recovery of which the action is brought — having first made his will, dated the 12th of Decémber, 1786. Probate of which was duly made, by the executors therein named, on the 29th of December, 1786.
    
      That Thomas Newark, Jr., one of the sons of the testator aforesaid, and one of his devisees, died about the year 1807, leaving a widow, Christiana Sleet, and one child, Ann, the plaintiff. That the said Thomas Newark, Jr., was married to the said Christiana, on the 18th of July, 1801. That the said Thomas Newark, Jr., was twenty-seven years old, when he married as aforesaid, and that when thus married he lived thereafter six years. That the said Ann, the plaintiff, was born on the 13th of July, 1803; and was married five years before September, 1830.
    
      That a certain deed, dated, the 23d of November, 1797, was made by the said Thomas Newark, Jr., to Samuel Guthrie, and Hannah 'his wife, which said Hannah is the aforesaid Hannah Taylor.
    
      That a certain deed, dated the 24th of November, 1797, was made by the said Thomas Newark, Jr., to Samuel Guthrie.
    
      That a certain deed, dated the 19th of December, 1797, was made by the said Samuel Guthrie and Hannah, his wife, to John Stapler Littler.
    
      That a certain deed, dated the 23d of July, 1803, was made by the said John S. Littler and wife, to Robert Smith in trust.
    
      That a common recovery was suffered to March term, 1798, wherein Samuel Guthrie was demandant, and Thomas Newark, Jr. was tenant.
    
      That the conveyances, namely, the deeds and the common recovery aforesaid, were conveyances of the premises aforesaid; for the recovery of which this action is brought.”
    The clause in the will of Thomas Newark, relating to the property in question, was as follows:
    “ Also: I give to my son, Thomas Newark, all my house and lot, situate in Spruce Street, Philadelphia, (now in the tenure of Abraham G. Claypoole,) as soon as he shall' arrive at the age of twenty-one years, him and his lawful heirs forever; and in case of his death without lawful issue, then said house and lot to be sold to the best advantage, and the amount thereof equally divided among my surviving children, except my daughters, before mentioned, each of whom are to have only one-haJf as much as each of my sons.”
    The deed of the 23d November, 1797, referred to in the special verdict, was as follows :
    “ This indenture, made the 23d day of November, in the year of our Lord one thousand seven hundred and ninety-seven, between Thomas Newark of the City and County of Philadelphia, mariner, of the one part, and Samuel Guthrie, of the same place, merchant, and Hannah, his wife, of the other part, witnesseth; that the said Thomas Newark, for, and in consideration of, the sum of two thousand two hundred and eighteen dollars, and seventy-nine cents, lawful money, to him at or before the sealing and delivery hereof, by the said Samuel Guthrie, and Hannah his wife, well and truly paid, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, released, and confirmed, and by these presents doth grant, bargain, sell, alien, release, and confirm unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, all that messuage or tenement, and lot or piece of ground now in tenure of the said Samuel Guthrie and wife, situate on the south side of Spruce Street, between Delaware Second and Third sti'eets, in the said City of Philadelphia; containing in breadth eighteen feet, and in length or depth fifty-one feet; bounded eastward by gi’ound formerly of Nathaniel Allen, deceased; southward, by ground formerly of Henry Badcock, deceased; westward,’ by a messuage and lot formerly of Joseph Webb, and since of George Wells; and northward by Spruce Street aforesaid. [It being the same messuage, lot and px-ernises which John Morris, of the distinct of Southwark, Gent., by indenture, dated the 2d day of January, 1782, recorded Book No. 6, page 213, granted unto Thomas Newai'k, the father of the said Thomas, party hereto in fee, subject to a yeaxdy rent charge of thi’ee pounds twelve shillings, lawful money, payable to Nathaniel Allen, his heirs and assigns, on the 25th day of March, yearly, for ever ; and which premises, the said Thomas Newark, the fathei-, by his last will and testament in writing, dated the 12th day of December, 1786, and pi’oved and remaining in the l’egister office at Philadelphia, devised unto the said Thomas Newark (his son) party hereto, and his lawful heirs for ever.] Together with all and singular, the ways, waters, water-courses, rights, privileges, improvements, members and appurtenances whatsoever thereunto belonging, and the reversions and remainders, rents, issues, an'd profits thereof, and all the estate, right, title, interest, property, cláim and demand whasoever, of him the said Thomas Newark, and his heirs in law and equity, of, in, and to the same. To have and to hold, all the said messuage, tenement, lot or piece of ground, hereditaments, and premises hereby granted or mentioned so to be, with the appurtenances, unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, to and for the only proper use and be-hoof of the said Samuel Guthrie, and Hannah his wife, their heirs and assigns for ever; under and subject, nevertheless, to the payment of the aforesaid yeaxdy rent charge of three pounds twelve shillings, lawful money, so as the same rent from and after the date of these presents, shall accrue and become due and payable for ever; but free and clear of and from all other incumbrances whatsoever. And the said Thomas Newark, for himself, his heirs, executors, and administrators, doth hereby covenant, promise and grant, to and with the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, in manner following, that is to say, that he, the said Thomas Newark, and his heirs, all the said messuage, tenement, lot or piece of ground, hereditaments and premises, hereby granted or mentioned, so to be with the appurtenances, unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, under the subject as aforesaid, against him, the said Thomas Newark, and his heirs, and against all and every other person and persons whatsoever, lawfully claiming or to claim, by, from, or under him, or them, or any of them, shall and will warrant and for ever defend ; and further, that he the said Thomas Newark, and his heirs, shall and will at any time hereafter, at the request of the said Samuel Guthrie, and Hannah, his, their heirs and assigns, make, do, execute, acknowledge and deliver, or cause to be made, executed and delivered, all such further and other act and acts, deed or deeds, conveyances and assurances in the law whatsoever, for the better and more perfect assuring and confirming the fee simple and inheritance of the said messuage, lot of ground and premises, with the appurtenances, subject to the rent charge aforesaid, unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, as counsel learned in the law shall reasonably advise and require. In witness whereof, the said parties have interchangeably set their hands and seals hereunto. Dated the day and year first above written.
    Thomas Newark, [l. s.]
    Sealed and delivered in the presence of us,
    
      Ahrm. Shoemaker,
    
    
      Joel Richardson.
    
    Received the day of the date of the above written indenture, of the above named Samuel Guthrie, and Hannah his wife, the sum of two thousand two hundred and eighteen dollars, and seventy-nine cents, being the full consideration monies above mentioned.
    Thomas Newark.
    Witnesses at signing,
    
      Ahrm. Shoemaker,
    
    
      Joel Richardson.
    
    The twenty-fourth day of November, A. D. 1797, before me, the subscriber, one of the Justices of the Peace, for the County of Philadelphia, came the within named Thomas Newark, and acknowledged the within written indenture to bo his act and deed, and desired the same to be recorded as such. — Witness my hand and seal.
    Joseph Bird, [l. s.]
    * Recorded in the Office for Recording of Deeds, &c., for thé City and County of Philadelphia, in Deed Book E. F., No. 16, page 705.
    Witness my hand and Seal of Office, this 20th day of November, 1804.
    Edward Fox, Recorder.”
    
    ’The deed of the 24th of November, 1797, referred to in the special verdict, began as follows: — “ This indenture made the 24th day of November, in the year of our Lord 1797, between Thomas Newark, of the City- and County of Philadelphia, mariner, of the one part, and Samuel Guthrie, of the same place, merchant, of the other part.” It then recited the conveyance, by John Morris to Thomas Newark, the father of the grantor, and the will of Thomas Newark, the father, setting forth, verbatim, the clause of the will, before mentioned, and then proceeded as follows:
    “Now this indenture witnesseth, that the said Thomas Newark, party hereto, for the docking, barring and cutting off all estates tail, and remainders in tail, of and in the said premises, and for the settling and assuring the same, to and for the uses and purposes hereinafter limited, expressed and declared, and in consideration of the sum of five shillings to him paid by the said Samuel Guthrie, at the time of the execution hereof, the receipt whereof is hereby acknowledged, hath and by these presents dbth grant, bargain and sell to the said Samuel Guthrie, his heirs and assigns, all that the aforesaid messuage or tenement, and lot or piece of ground, situate, bounded and being as above described, containing in breadth eighteen feet, and in depth fifty-one feet, together with all the rights, privileges, hereditaments and appurtenances whatsoever thereunto belonging, and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title, and interest whatsoever, of him the said Thomas Newark, party hereto, in law or equity, of, in, to, and out of the same: to have and to hold the said messuage or tenement, and described lot or piece of ground and premises hereby granted, with the appurtenances, to the said Samuel Guthrie and his heirs for ever, to the intent and purpose, that he, the said Samuel Guthrie, shall and may become perfect tenant of the freehold of the said premises, with the appurtenances, and shall stand and be seized thereof, until a good and perfect common recovery, with single voucher over, may be had, suffered and executed, of the same, according to the usual course of common recoveries, for the assurance of lands and tenements, in such case used and accustomed; and thereupon it is hereby covenanted and concluded and agreed, by and between the said parties hereto, for themselves and their respective heirs, in manner following, that is to say, that the said Thomas Newark, party hereto, shall and will, before the end of December term next coming, permit and suffer the said Samuel Guthrie to sue forth and prosecute against him, the said Thomas Newark, party hereto, one writ of entry sur disseisin en le post,- returnable before the justices of the Court of' Common Pleas, for the County of Philadelphia, thereby demanding against the said Thomas Newark, party thereto, the premises aforesaid, with the appurtenances, by such name and description, and in such manner and form as by counsel learned in the law shall be advised. And upon which, said writ of entry so to be sued forth and prosecuted, the said Thomas Newark, party hereto, by himself, or by his attorney or attorneys, shall appear gratis, and vouch to warranty Joseph Fox, who shall appear and imparle, and afterwards make default, and depart in'contempt of the court, so that judgment may be thereon had for the said Samuel Guthrie, to recover the premises aforesaid, against the said Thomas Newark, party hereto, and for the said Thomas Newark, to recover in value against the said Joseph Fox, the common vouchee, to the end that one perfect common recovery, with single voucher, may be thereupon had and suffered, ^nd all and every other thing and things may be done, needful and proper for suffering the same, according to the course of common recoveries in such cases used; and the same recovery is also to be executed by one writ of habere facias seisinam accordingly. And it is hereby covenanted and agreed, by and between the parties to these presents, for themselves, and their, and each of their heirs, that the said recovery so as aforesaid, or in any other manner to be had and suffered of the premises aforesaid, shall be and enure and shall be deemed and adjudged and taken, and is meant and intended, and by thd said parties to these presents, is hereby declared to be and enure, and the said Samuel Guthrie and his heirs, from, and immediately after the suffering, the same shall be and stand seized of the said premises, with the appurtenances, to and for the only proper use, benefit and behoof of the said Samuel Guthrie, his heirs and assigns for ever, and to and for no other use, intent or purpose, whatever. In witness whereof the said parties have hereunto interchangeably set their hands and seals. Dated the day and year first above written.
    Thomas Newark, [l. s.’
    Samuel Gutiirie, [l. s.‘
    Sealed and delivered in the presence of us,
    
      Abm. Shoemaker,
    
    
      Joel Richardson,
    
    
      John S. Liitler.
    
    
      On the 24th day of November, anno Domini 1797, before me the subscriber, one of the Justices of the Peace for the County of Philadelphia, personally appeared Thomas Newark and Samuel Guthrie above named, and acknowledge the above written indenture to be their act and deed, for the uses and purposes therein mentioned, and desired the same might be recorded as such. Witness my hand and seal the day and year aforesaid.
    Joseph Bird, [l. s.]”
    The deed of the 19th of December, 1797, by Guthrie and wife, to Littler, and that of the 23d of July, 1803, from Littler and wife, to Smith, -were not material, except as evidence of the defendant’s title — the conveyances being in the ordinary form. The consideration expressed in the deed of Guthrie to Littler, was the same as that stated in the first deed of Newark to Guthrie, viz. $2221 79.
    The proceedings in relation to the common recovery, were as follows: . «
    “On the 24th of November, 1797, Thomas Newark, by deed poll reciting, that he was about to proceed to sea, “and being desirous that a common recovery may be suffered of my estate, hereinafter mentioned,” constituted Robert Porter, of the City of Philadelphia, attorney at law, and Abraham Shoemaker, of the same city,- conveyancer, jointly and severally, his true and lawful attorney, for the following purposes, viz.: — “ For me, and in my name, to appear before the Justices of the Court of Common Pleas, for the County of Philadelphia, before the end of December term next, or any other term after the date hereof, and permit and suffer Samuel Guthrie, of the said city, merchant, to sue forth arid prosecute against me, the said Thomas Newark, one writ of entry sur disseisin en le post, returnable before the said Justices of the Court of Common Pleas for the County of Philadelphia, thereby demanding against me, the said Thomas Newark, all that messuage or tenement, and lot or piece of ground thereunto belonging, situate on the south side of Spruce Street, between Delaware Second and Thh'd Streets, in the said city, with the appurtenances, which, in the testament 'and last will of my father, Thomas Newark, deceased, dated the 12th of December, 1786, is devised to me in fee tail;- by such name and description, and in such manner and form, as by counsel learned in the law shall be advised; and upon which said writ of entry so to be sued forth and prosecuted against me, the said Thomas Newark, to appear, gratis, and vouch to warranty Joseph Fox, who shall appear and imparle, and afterwards make default and depart in contempt of the court, so that judgment may be thereupon had for the said Samuel Guthrie, to recover the premises aforesaid against me, the said Thdmas Newark, and for me to recover in value against the said Joseph Fox, the common vouchee; to the end that one perfect common recovery, with single voucher, may be thereupon had and suffered, and all and every other thing and things may be done, needful and proper for suffering the same, according to the course of common recoveries, in such cases used ; and the same recovery is also to be executed by one writ of habere facias seisinam accordingly: and the said recovery so as aforesaid, or in any other manner to be had and suffered of the premises aforesaid, shall be and enure, and shall be deemed, adjudged and taken, and is hereby meant, intended, and declared lo be, and enure, from and immediately after suffering the same, to and for the only proper use, benefit, and behoof of him, the said Samuel Guthrie, his heirs and assigns for ever, and to and for no other use, intent or purpose whatever: and in case the said recovery cannot be so, as aforesaid, suffered and executed of the said premises at the time aforesaid, I do hereby authorise and fully empower my said attorneys, jointly and severally, to appear for me, and in my name, before any Court or Courts of record in Pennsylvania, in any term after the date hereof, and there permit and suffer any person or persons whatsoever, to sue forth and prosecute against me one or more writ or writs of entry, sur disseisin en le post, returnable before the justices of the said court or courts, demanding the premises aforesaid, so that one or more good and perfect common recovery or recoveries, with single, double, or treble vouchers, may be had and suffered of the premises aforesaid, according to the usual course of common recoveries, for the assurance of lands and tenements, in such case used and accustomed: • and all-and whatsoever my said attorney and attorneys, jointly and severally, shall lawfully do or act in and about the premises, by virtue hereof, I do hereby ratify, confirm, and allow the same, as if I was present and did the same in my own person. In witness whereof, I, the said Thomas Newark, have hereunto set my hand and seal, this twenty-fourth day of November, anno Domini one thousand seven hundred and ninety-seven.
    Thomas Newark, [l. s.]
    Sealed and delivered in the presence of us,
    
      Joel Richardson,
    
    
      John S. Littler.”
    
    Annexed to this power of attorney, were the following acknowledgments :
    “On the 24th day of November, anno Domini 1797, before me, the subscriber, one of the Justices of the peace for the County of Philadelphia, came the before-named Thomas Newark, who is now of lawful age, and acknowledged that he signed, sealed, and delivered the foregoing letter of attorney as his act and deed, for the uses and purposes therein mentioned and described, and desired the same might be recorded as such. Witness my hand and seal the day and year aforesaid.
    Joseph Bird, [l. s.]
    On the 26th day of January, anno Domini 1798, before me, the subscriber, President of the Court of Common Pleas for the County of Philadelphia, came the before-named Thomas Newark, who is now of lawful age, and acknowledged that he signed, sealed and delivered the foregoing letter of attorney, as his act and deed, for the uses and purposes therein mentioned and described, and desired the same might be recorded as such. Witness my hand and seal, the day and year aforementioned.
    
      John D. Coke, [l. s.]”
    The record of the common recovery was as follows:
    
      “March Term, 1798.-— Common Recovery — Samuel Guthrie,Demand-ant, v. Thomas JVeioark, Tenant — To the use of Samuel Guthrie.
    
    Pleas enrolled at Philadelphia, before the Hon. John D. Coxe, Esq., president, and his associates, judges of the Court of Common Pleas, in, and for the County of Philadelphia, in the Term of March, in the year of our Lord one thousand seven hundred and ninety-eight.
    Philadelphia County, ss. — Samuel Guthrie of the City of Philadelphia, merchant, in his proper person, demandeth against Thomas Newark, of the City and County of Philadelphia, mariner, a certain messuage or tenement, and lot or piece of ground, now in the tenure of said Samuel, and Hannah his wife, situate on the south side of Spruce Street, between Delaware Second and Third Streets, in the said city, containing in breadth, eighteen feet, and in length or depth, fifty-one feet. Bounded eastwardly, by ground formerly of Nathaniel Allen, deceased; southwardly, by ground formerly of Henry Badcock, deceased ; westwardly, by a messuage and lot, formerly of Joseph Webb, and since of George Wells; and northwardly, by Spruce Street aforesaid, together with the appurtenances, subject to a yearly rent of three pounds twelve shillings, lawful money of Pennsylvania, to Nathaniel Allen, his heirs and assigns for ever, which, by the testament and last will of Thomas Newark, father of the said Thomas Newark, bearing date the twelfth day of December, anno Domini, one thousand seven hundred nnd eightvsix, recorded in the register’s office at Philadelphia, was devised to his son, the said Thomas Newark, which he claims to be his right and inheritance, and into which, the said Thomas hath not entry, unless after a disseisin, which Hugh Hunt thereof unjustly, and without judgment, hath made to the aforesaid Samuel Guthrie, within thirty years, now last past; and whereupon he saith, that he himself was seized of the tenements aforesaid, with the appurtenances, in his demesne, as of fee and right, in time of peace, in the time of the commonwealth that now is, by taking the profits thereof to the value, &c., and into which, &c., and thereupon he bringeth suit, &c.: and the said Thomas Newark, by his attorneys, Robert Porter, of the City of Philadelphia, Esquire, and Abraham Shoemaker, of the same place, conveyancer, duly constituted and appointed by letters of attorney, bearing date the twenty-fourth day of November, in the year of our Lord one thousand seven hundred and ninety-seven, comes and defends his right, when, &c., and thereupon voucheth to warranty Joseph Fox, who is present here in court, in his proper person, and the tenements aforesaid, with the appurtenances to him freely warranteth, &c., and hereupon the safd Samuel demandeth against the said Joseph Fox, tenant, by his own warranty, the tenements aforesaid, with the appurtenances in form aforesaid, &c., and whereupon he saith that he himself was seized of the tenements aforesaid, with the appurtenances in his demesne, as of fee and right in time of peace, in the time of the commonwealth that now is, by taking the profits thereof, to the value, &c., and into which, &c., and thereupon he bringeth suit, &c., and the aforesaid Joseph Fox, tenant, by his own warranty, defends his right, when, &c., and saith, that the aforesaid Hugh did not disseise the said Samuel Guthrie of the tenements aforesaid, with the appurtenances, as the said Samuel, by his writ and count aforesaid, above, doth suppose, and of this he puts himself upon the country, and the aforesaid Samuel thereupon craveth leave to imparle, and he hath it; and afterwards the aforesaid Samuel cometh again here into court, in this same term, in his. proper-person, and the aforesaid Joseph, although solemnly called, cometh not again, but hath departed .in contempt of the court, and maketh default: Therefore, it is considered that the aforesaid Samuel Guthrie, do recover his seisin against the said Thomas Newark, of the tenements aforesaid, with the appurtenances, and that the said Thomas, have of the lands of the said Joseph, to the value, &c., and the said Joseph in mercy; and hereupon the said Samuel prays a writ of the commonwealth, to be directed to the sheriff of the county aforesaid, to cause full seisin of the tenements aforesaid, with the appurtenances, to be delivered to him, and it is granted to him, returnable here forthwith. And afterwards, in this same term, to wit, the day of March, cometh the said Samuel in his proper person, and the sheriff, namely, Jonathan Penrose, Esquire, now returneth, that he, by virtue of the writ aforesaid, to him directed, on the day of the same month, did cause the said Samuel Newark to have full seisin of the tenements aforesaid, with the appurtenances as he was commanded.”
    “ Robert Porter, Esq., a special Power of Attorney, filed with this Common Recovery, vouches to Warranty Joseph Fox, the common vouchee.”
    Upon the facts found by the special verdict, the District Court ordered judgment to be entered for the plaintiff below ; whereupon the defendant removed the record to this court; and assigned the following errors:
    “ 1. That the court below erred in giving judgment for the plaintiff below, because Thomas Newark, Jr., did not, as the court below supposed, take an estate tail, under the will of his father, but took a fee simple, with condition of defeasance.
    2. That the court below erred in giving judgment for the plaintiff below, because, if Thomas Newark did, as they supposed, take an estate tail, under the will of his father, that estate tail was barred by the common recovery.”
    Mr. C. Ingersoll, for the plaintiff in error:
    1. Thomas Newark, the devisee, took a fee simple in the house and lot, liable to be defeated by his death without issue." [Upon an intimation by the court, that they considered the question settled by repeated adjudications, Mr. Ingersoll abandoned this point.]
    2. The common recovery was well suffered. The whole difficulty has arisen from the mistake of the scrivener, who, instead of drawing a re-conveyance from Guthrie to Newark, drew a second conveyance from Newark to Guthrie, which the parties executed in ignorance. This is a mistake of the kind which the courts always allow to be corrected. 2 Black. Com. 358. 5 Cruise. Dig.p.440, tit. 36, c. 6, s. 22. Id. 437, 438. It is not necessary,however, to contend for an amendment. The intention of th,e parties is obvious, and the court will carry it into effect by disregarding the second deed, and treating it as a nullity. The first deed may then be considered as merely a declaration of the uses of the recovery, and not as divesting the estate of Newark. The record is prima facie evidence of there being a good tenant to the prcecipe; and it is no matter whether he is a tenant by right or wrong. Wilson on Fines, &c., 275. Pigott on Ditto, 28, 40,41. There was nothing to the contrary but the deeds, and no possession on the part of the plaintiff. Lord Cromwell’s case, (2 Rep. 74.) Pigott, 59, 60. 2 Black. Com. 362, 363. 5 Cruise. Dig. 450. In England, the Stat. of Geo. 2, renders all recoveries good, after twenty years possession. Here, there has been possession for thirty-seven years; and the court will presume every thing in favour of it. It will be remarked, that all these instruments were acknowledged on the 24th of November, before the same magistrates, and with the same witnesses. They may be constdered as the same transaction. The case of Doe, ex. dem. Odióme v. Whitehead, (2 Burr. Rep. 704,) shows how far the courts will go in supporting these species of assurance. If no deed to make a tenant to the prcecipe were produced, the court would presume one, or presume the tenant in, by disseisin. 3 Rep. 59. 1 Mod. Rep. 117. Jacob’s Law Diet. tit. Recovery. Equity will correct mistakes in deeds and wills. 1 Mad. Chan. 44, 55.
    Mr. Norris and Mr. James S. Smith, contra.
    The act of the 27th January, 1749-50, “for barring estates tail,” declares that fines and common recoveries, “ suffered duly and according to the common or statute laws of England,” shall have the like force and effect as in England. No greater power or effect is given to them. Now, there are certain forms necessary to give validity to a common recovery; and these cannot be dispensed with. 2 Black. Com. 300. 5 Cruise. Dig. Tit. 36, c. 1, s. 9. In the case of a recovery with a single voucher, as here, the tenant in tail must be tenant to the prcecipe, and must be in possession of the premises. 5 Cruise. Dig. tit. 36, c. 2, .5. 10. Stump v. Findley, (2 Rawle, 175.) Here it appears, that when the recovery was suffered; that is, at March term, 1798, the title was in Littler. If Thomas Newark, Jr., conveyed the estate by feoffment, it was a discontinuance. 3 Black: Com. 171. Our act of 1715 says, that deeds of bargain and sale shall have the effect of a feoffment. At all events, Newark conveyed all his own estate. There is no evidence of any intention that Guthrie should reconvey to Newark, or of any mistake. There is nothing on the record to amend. The record is all right on its face; but we show the re-covery to be wrong, by proving that Newark had neither title nor possession at the time. In Bridges v. The Duke of Chandos, (2 Burr. Rep. 1073,) Lord Mansfield said, that if a person had power to suffer a recovery, and thereby bar an estate tail, omnia praesumuniur rite et solemniter esse acta until the contrary appears; but if the contrary appears, there is an end of the presumption. And he mentioned the case of the Earl of Suffolk, where blundering deeds were produced, which appeared clearly to be wrong, “ and it was manifest upon the evidence disclosed, that there was no good tenant to the prcecipe.” That is the case here. The deed to lead the uses, forms no part of the record, and, consequently, could not be amended, even if there were any thing to amend, by which there is not. They also cited Cruise on Recoveries, &c., 8, 12. Coventry on Do., 32, 51. Pigott on Do., 28. 5 Cruise. Dig. tit. 36. c. 7.
    
   The opinion of the court was delivered by

Sergeant, J.

On the question, what estate Thomas Newark took, under the will of his father, there has been little or no argument in this court; but I think it clear, that according to the current of decisions in this court and in England, he took an estate tail. Most of the authorities applicable to this point, will be found collected in the cases of Haines v. Witmer, (2 Yeates, 400,) and Clark v. Baker, (3 Serg. & R. 470.) The more doubtful point has been, whether the common recovery was duly suffered, so as to bar the issue in tail;'and the ,court below held that it was riot.

The act of assembly of the 27th of January, 1749-50, gave to fines and common recoveries the same effect for the barring of estates tail within this province, as they had by the laws of England ; and many recoveries were suffered for this purpose, prior to the passage of the act of the 16th of January, 1799, which enables tenants in tail to convey by deed, as fully as they could by common recovery or othei'wise. In the construction of common recoveries, suffered after the act of 1749-50, the same rules are applicable which governed them in England: and in that country, they had long been treated as common assurances; and it has become a settled rule, that, like other conveyances, such construction is to be made as will best support the agreement of the parties, and carry into effect their intentions. The main consideration is, whether there were parties competent to suffer the recovery. If there were, every interpretation of their acts is to be made with a view to sustain their conveyance, and not to permit mistakes or blunders in the use of the machinery employed, to overturn rights acquired and transmitted to purchasers for valuable consideration. Before the statute declonis, a grant to one and the heirs of his body was so interpreted by the courts, as to enable the donee to transfer a fee simple, as soon as issue was born. That statute forbade this construction, and created the tenancy in tail, with the design of preserving the estate' in one family, from generation to generation. Perpetuities of this kind were found so inconvenient, and so hostile to the improvement of the country, that the device of a common recovery was allowed, in order to unfetter the estate; and the tenant in tail has since been treated as the potential owner of the fee simple, having an inherent right to destroy the entail, with all remainders and reversions, incapable of being restrained or prevented by any clauses of limitation, condition,' or prohibition, by custom, recognizance, or otherwise; and every support and encouragement have been given to common recoveries, as legitimate modes of conveyance of the fee simple. As early as Lord Coke’s time, the language of the courts is quite as strong as any that has been since uttered. In Jennings’ case, (10 Co. 44,) it is said, that where tenant in tail is, in the recovery, tenant in fact, or tenant in law, as vouchee, the law,, as incident to his estate, has made the land and all remainders and reversions subject to his pleasure, and he has right and power to bar them all. In 3 Rep. 3, (Winchester’s case,) it is said, that common recoveries, as much as any benign interpretation of the law will permit, ought to be maintained, because they are the common assurances of the land. In Lord Cromwell's case, (2 Rep. 74,) it is said, that common recoveries ai’e common assurances of the land; and such conveyances shall be expounded and construed according to common allowance, without prying into them with eagle’s eyes. After an interval of two centuries, Blackslone says, that modern courts of justice Consider them in no other light than as the formal modes of conveyance, by which tenant in tail is enabled to alien his lands. 2 Black. Com. 360. This language has been often reiterated. 2 Black. Com. 358. 1 Wils. 73. 1 Burr. 115. I speak not now of a recovery suffered by a tenant for life, which is forbidden by the law, and is always strictly construed. It is far otherwise of a tenant in tail, conveying a fee simple by it; for he does no more than what he may rightfully do, and what public policy has encouraged him to to. Let us examine, then, whether the recovery in the present instance connot be sustained; for if it can be so, by any reasonable interpretation of the acts of the parties, it certainly ought to be in favour of persons holding under it as purchasers for valuable consideration, by titles transmitted from hand to hand, accompanied with possession for now about thirty-seven years.

Thomas Newark was tenant in tail of the premises under the will of his father, and, as such, entitled to transfer a fee simple by suffering a common recovery. He was about to leave this city on a voyage to Amsterdam, as appeal’s by the power of attorney; and had sold, or contracted to sell the premises to Guthrie and wife, or, if they acted as his friends, to Littler: for, on the 19th of December, 1797, soon after the deeds of the 24th November and the teste of the writ of entry, Littler took a deed from Guthrie and wife, in fee simple, in consideration of $2218 79 ; the same consideration stated in the deed from Newark to Guthrie and wife. Littler held until 1803, when he conveyed to Robert Smith, under whom the defendant holds. It is impossible not to perceive, from the whole transaction, that Littler stood in the light of a bona fide purchaser of the fee simple, for a valuable consideration, entitled, as such, to demand from Newark the suffering of a common recovery to transfer the title; and that the uses of the recovery were to be in Guthrie and wife, (or Guthrie himself, which leads to the same result,) for the purpose of conveying the fee to Littler; and that Littler bought on the faith of this arrangement, then actually made and in progress of completion.

The first deed is dated on the 23d of November, 1797, but Was acknowledged on the 24th: and by it Newark, in consideration of $2218 79, bargains and sells the premises to Samuel Guthrie, and Hannah his wife, their heirs and assigns, to the use of Samuel Guthrie, and Hannah his wife, their heirs and assigns; with a covenant for further assurance. If this deed be considered by itself, as an instrument altogether distinct from the other acts and declarations of the parties, then it conveyed no more than Newark could rightfully convey by deed, namely, a base fee, which bound him during his life time; but which his issue might defeat by entry. This point was settled by Chief Justice Holt, in the case of Machel v. Clark, 2 Ld. Ray. 778. 3 Burr. 1703. Prest. Abs. Tit. 385. A conveyance, under our recording act, has the same effect: it passes no more than the grantor can lawfully convey. M’Kee’s Lessee v. Pfoutz, 3 Dall. 486. A common recovery, afterwards duly suffered by Newark, with double voucher, would have corroborated the base fee transferred by the bargain and sale to Guthrie and wife, and passed a fee simple, to the same uses as those contained in the deed to them. But a common recovery, with single voucher, suffered by Newark, in which he was tenant to the prcecipe, as he had parted with the freehold by his deed to Guthrie and wife, would bar himself only, and not his issue.

This, however, is not the true way of considering the transaction. It is obvious, from the dates of the deeds and power of attorney, and from the proceedings in the recovery, that they constituted, together, one assurance; of which the deed to Guthrie and wife, was a deed to lead the uses, and was but part of the proceeding, and executory until the recovery was suffered. When suffered, it enured to the uses declared in that deed ; more especially, as there is an immediate purchaser under it. Where no uses are declared of a recovery, either by a previous deed to lead the uses, or a subsequent one to declare them, it enures to the use and benefit of him who suffers it. If there be a purchaser, for a valuable consideration, the recovery, when suffered, enures to his use. Here were both a deed to lead the uses to Guthrie and wife, and an immediate purchaser, for valuable consideration, from them. The deed of the 23d November, 1797, being but executory, its only operation, till the recovery should be completed, was to fix the uses of the recovery ; and when the recovery was completed, the freehold and seisin passed to the demandant, Guthrie, to those uses, and those uses only. A deed to lead the uses of a fine or recovery, says Mr. Preston, in his Treatise on Conveyancing, vol. ii, page, 2, 3, is not a conveyance of itself. It has no individual or immediate operation on the seisin or estate. It is merely a covenant or agreement to levy a fine, or suffer a common recovery. This deed, and the fine when levied, or recovery when suffered, will operate as a part of the same assurance. • No estate passes till the fine is levied, or recovery suffered; and in the mean time, no uses can arise, for want of a seisin to supply or feed those uses. In the case of Doe dem. Odiorne, v. Whitehead, (2 Burr 70,) the first instrument was a conveyance! in January, 1735, from Timothy Staughton, the tenant in tail, by lease and release, to trustees to uses, in strict settlement, with a bovenant to levy a fine to the same uses. Afterwards, in Hilary term, 1735, Timothy Staughton did levy a fine according to the bovenant. The argument of the plaintiff was, that the fine passed no freehold, the freehold having been, before the levying of the fine; bonveyed by lease and release, and that the fine was a distinct conveyance. But Lord Mansfield says, all was executory at the time of making the lease and release: the deeds and the fine were to be considered as one conveyance: the operation of the deeds was only to declare the uses of the fine: and the court condemn, in strong language, the attempt to divide the different parts of one conveyance; and declare that, in point of law, the whole transaction; and its general intention, ought to be taken into one view. So here, Newark had a right to suffer a common recovery, and sell the fee simple : it w,as his plain and obvious intent to do so, on the face of the whole transaction. The deed to Guthrie and wife is not to be ¡severed from the rest, and treated as á distinct conveyance, but as a deed to lead the uses of a common recovery, tobe suffered for the purposes of passing the fee simple to a purchaser. And this abundantly appears, although there is in the deed no covbnant to suffer a recovery, or any mention of it. Under the covenant for further assurance, a purchaser has a right to demand that a recovery be suffered by the tenant in tail in his favour, as fully as if that covenant were particularly expressed. 1 Prest. Convey. 15. 1 Prest. Abs. Tit. 257. And from that covenant, from there being a purchaser, and from the cotemporaneous dates and proceedings, it is plain that the recovery was to be suffered to the uses expressed in the deed.

The next step taken, was an attempt to make a tenant to thé prcecipe. For this purpose, Newark executes a deed to Guthrie; in fee simple; which, after reciting Newark’s title, states that Newark, for barring all estates tail, and remainders in tail, in the premises, and for settling and assuring the same; in consideration of fivd shillings, bargains and sells to Guthrie, his heirs and assigns, to the intent and purpose that Guthrie shall and may become perfect tenant of the freehold, and stand and be seized thereof, until a common recovery, with single voucher, may be suffered of the same. So far the deed is intelligible; and if it had gone on to provide for á recovery in which Guthrie should be tenant, and some other person demandant, it would have had some consistency: although such recovery against Guthrie, with single voucher, would not have barred the issue in tail. The true way would have been with double voucher: namely, Guthrie to vouch Newark, and Newark the common vouchee. Instead of this, it goes on to provide that Guthrie should be the demandant, and Newark the tenant; the recovery to enure to the use of Guthrie in fee. When the granting part of the deed, and its declared and sole object and intent, are directly at variance with the mode pointed out of carrying that object into effect, it is impossible to give it any effect, unless we can reconcile contradictions. And this is more especially true, in regard to a deed to make a tenant to the pracipe, who is always considered a mere instrument to effectuate the intention of the parties. 1 Burr. 117. This deed, therefore, was an abortive effort, and in its effect and operation, a mere nullity. No recovery, according to its declared intent, was ever attempted to be suffered against Guthrie, as tenant; on the contrary, he, by his writ of entry and proceedings, subsequently admitted the freehold and seisin to be in Newark, and recovered them against Newark ; and was thereby for ever estopped, as party to that recovery, to set up any adverse title by virtue of this deed, against those who purchased from him.

That being the case, the recovery is duly suffered, so as to bar the issue in tail, by Newark, as tenant to the writ of entry, with single voucher, he being seized of an estate tail in possession. 2 Black. Com. 356. 1 Prest. 356. 1 Prest. Convey. 31. And it operates according to the uses expressed in the deed to Guthrie and wife, who, by their deed of the 19th of December, 1797, lawfully sold and conveyed the fee simple in the premises to Littler, under whom the defendant holds,

Judgment reversed.  