Taltarum's Case

The principle of barring the entail

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.

The principle by which the entail was barred was merely inferred from the judgment in Taltarum's Case, rather than explicitly stated. Solomon Atkinson, in The Theory and Practice of Conveyancing (1839), stated the facts (as then understood) thus:

"in the reign of Ed. 4 [...] the judges [...] determined, that even a nominal and fictitious recompense, descending to the issue in tail, should be an effectual bar, not only to the issue in tail, but also to the persons entitled in remainder and reversion. This, though not expressly so decided, is the inference drawn from the determination of the judges in the celebrated case 12 Ed. 4, known as Taltarum's case. The case was thus:— J. S. being seised in fee of the lands in question, gave them to one William Smith, to hold to him, and the heirs of his body, by force of which he was seised. William Smith died, leaving Humphrey, his eldest son, on whom these lands descended, who entered and was seised "per formam doni". Humphrey enfeoffed one Tregos of the said lands in fee, who rendered them to the said Humphrey and Jane, his wife, and to the heirs of their two bodies, remainder in fee to the said Humphrey, by force of which they were seised. Some time afterwards Jane died, on which Humphrey became sole seised of the lands in tail, and, being thus seised, one Taltarum brought a writ of right against Humphrey, and counted of his possession against him. Humphrey made defence, and vouched to warranty one R. King, who entered into the warranty, and joined the demise on the mere right. Afterwards R. King, the vouchee, made default, and departed in contempt of the court, in consequence of which final judgment was given, that the demandant, Taltarum, should recover the lands in question against Humphrey, and that Humphrey should recover lands of equal value of R. King, the vouchee. Humphrey afterwards died, without leaving heirs of his body; and the question was, whether Richard, the brother of Humphrey, who was heir in tail to those lands, should be barred by this recovery? It was determined by all the judges, that the estate tail was not barred by this recovery, because the tenant in tail was not seised of the estate tail at the time of the recovery, but of another estate; and as the recovery value goes according to the estate whereof the tenant was seised at the time of the recovery, and not in recompense of the estate he had not, the issue in tail could have no recompense in this case, and, therefore, was not barred by the recovery. It follows, therefore, that, if Humphrey had been seised of the estate tail of the gift of J. S. at the time of the recovery, Richard, who, be it observed, was tenant in tail in remainder, would have been barred"

History of the case

All comment on the case had taken place based on two slightly contradictory reports written in the Year Book, and in the absence of the original record. The true history of the case was eventually researched by Frederic William Maitland, who located it on the De Banco Roll for Mich. 12 Edward IV, m.631 (1472). He noted that it concerned a messuage and 100 acres of land in Portreath, Cornwall. Maitland continued:

"The plaintiff was Henry Hunt; the defendant was John Smyth. The action was on the statute of 5 Richard II against forcible entry, and the plaintiff sued "tam pro domine Rege quam pro seipso". The original feoffor mentioned in the defendant's plea was Thomas Trevistarum. In the plaintiff's replication the famous recovery is alleged to have taken place in the Easter term of 5 Edward IV, before Robert Danby and his fellow justices of the bench. The writ stated that John Arundel, the lord of the fee, had remised his court. The demandant in it was Thomas Talkarum or Talcarum. His name is written many times, now with a k, now with a c, never with a t. The vouchee was Robert Kyng. The well-known rejoinder about the settlement made by John Tregoz was pleaded only as to twenty-four acres, parcel of the land in question. As to the residue the plaintiff pleaded in a more general fashion that at the time of the recovery Humphrey Smyth was not seised of the freehold, and that therefore the recovery was void in law"

Maitland noted that at the time the report, characterised by a "rambling obscurity", was written up in the Year Book, the judgment did not actually seem to have been given, and could not locate the eventual record of judgment in the case itself. Puzzled by the "hypothetical state of facts" about which the four judges - including Chief Justice Bryan and Justice Littleton - in the forcible entry case had been arguing, Maitland determined:

"Talkarum, the recoveror, having obtained judgement, did nothing more during the lifetime of Humphrey Smyth, the tenant in the action. Humphrey died seised: on his death Robert Smyth entered, and on Robert's death John Smyth entered. Then Talkarum entered on John and enfeoffed Henry Hunt, then John entered and cast out Hunt, and this was the forcible entry complained of [...] Leaving to Cornishmen the question whether Talkarum and Trevistarum are possible names, I cannot refrain from the remark that the name Henry Hunt is beautifully simple."

More recent research has shown that the background of Taltarum's Case was as follows. A man called Thomas Trevistarn granted land in Portreath to one William Smyth in fee tail. On William Smyth's death, his eldest son and heir Humphrey took possession of the land under the entail. Humphrey Smyth then conveyed part of the land to a man called John Tregoz, probably as part of a marriage settlement, and Tregoz accordingly reconveyed it back entailed on Humphrey and his wife Jane, with remainder to Humphrey's heirs. Humphrey's wife died childless, and he suffered a recovery of the land to another man, Thomas Talcarn (the person whose name was afterwards misspelt "Taltarum"). At this point, Humphrey probably believed that the recovery, in accordance with usual practice, would bar both existing entails. Talcarn, in turn, conveyed it to Henry Hunt - probably without even taking possession. However, on Humphrey Smyth's death, John Smyth, the son and heir of Humphrey's younger brother Robert, claimed possession of the land under the original entail, evicting Hunt. The case itself was concerned with Hunt's action on forcible entry against John Smyth. Hunt would be able to get a favourable judgment if he, and his lawyer John Catesby, could demonstrate that the recovery to Talcarn had destroyed the operation of the entail originally created by Trevistarn.

It also appears that a counter-action by Smyth - represented by Guy Fairfax - against Hunt, for writ of formedon in the descender, was going on at the same time as the forcible entry action by Hunt against Smyth, and that elements of the pleadings in the descender action became included with the report of the forcible entry action. This might explain the confusing and obscure nature of the reports. Smyth's success hinged on the argument that, at the time his uncle had suffered a recovery of the land to Talcarn, he was only in possession of the land under the later Tregoz entail to him and Jane, rather than the original Trevistarn entail: would mean that John Smyth could still claim the land under the original entail.

Despite this, the real significance of the case in later centuries lay in the principle that was extracted from the judges' arguments about how the common recovery worked and how compensation should be made, even if commentators got the details (and name) of the case itself wrong, having never seen the Plea Roll. Most authorities followed Sir Edward Coke in attributing the common recovery to what became known as "Taltarum's Case". It is now clear, however, that as a legal device, the common recovery predated 1472, possibly first appearing in the 1440s: Taltarum's Case added little beyond introducing, through the judges' deliberations, the device of the "double voucher", though this did not become part of the common recovery until the mid 16th century. Nevertheless it seems likely that the example of Taltarum's Case served to popularise the procedure, as the annual number of recoveries was far greater in the decade after 1472 than in the previous decade.