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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''.〔Megarry, R. ''The Law of Real Property'', Sweet & Maxwell, 2012, p.72〕 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.〔Fisher, H. A. L. (ed). ''The Collected Papers of Frederic William Maitland'', Vol 2, Cambridge UP, 1911, p.310〕〔''Baker and Milsom Sources of English Legal History: Private Law to 1750'', OUP, 2010, p.68 〕 ==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.〔Simpson, A. ''Legal Theory and Legal History: Essays on the Common Law'', Black, 1987, pp.147〕 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''. It should be noted that 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 doui. 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"''〔Atkinson, S. ''The Theory and Practice of Conveyancing'', Vol 1, 1839, p.216〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Taltarum's Case」の詳細全文を読む スポンサード リンク
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