Legal Definitions - feigned recovery

Feigned recovery refers to a historical legal maneuver, primarily used in English property law from the 15th to the 19th centuries. It was a crucial component of a larger legal fiction known as a "common recovery."

In essence, a feigned recovery involved a pre-arranged, fictitious lawsuit where one party *pretended* to lose, allowing another party to "recover" (gain possession of) land as if by a legitimate court judgment. This elaborate charade was designed to circumvent strict inheritance laws, known as "entails," which prevented landowners from freely selling, mortgaging, or otherwise disposing of their property. By orchestrating a feigned recovery, landowners could effectively "break the entail" and transfer full ownership of their land.

Here are some examples illustrating how a feigned recovery would have been used:

• Example 1: Selling Entailed Land

  Imagine Sir Alistair owned a large estate, Blackwood Manor, which had been passed down through generations with an entail. This meant he could only pass it to his eldest son, and he could not sell any part of it outright. Sir Alistair, however, needed funds to pay off significant debts and wished to sell a portion of the estate to a wealthy merchant, Mr. Davies.

  To legally sell the land in "fee simple" (full, unrestricted ownership), Sir Alistair and Mr. Davies would arrange a "common recovery." Mr. Davies would initiate a fictitious lawsuit against Sir Alistair, claiming ownership of the land. Sir Alistair would then "vouch" a third party (often the court crier, who acted as a fictional guarantor) into the suit, claiming he had acquired the land from them. This third party would then *pretend* to lose the case by default or by a pre-arranged "feigned recovery." The court, treating this as a genuine loss, would then award the land to Mr. Davies, effectively breaking the entail and allowing the sale to proceed. The "feigned recovery" is the specific, pre-arranged "loss" in the lawsuit that enabled the transfer.

• Example 2: Mortgaging Property

  Consider Lady Beatrice, who inherited her family's ancestral home, Willow Creek Estate. The estate was subject to a strict entail, preventing her from using it as collateral for a loan. Lady Beatrice urgently needed funds to repair the dilapidated manor house and prevent its collapse.

  To secure a mortgage, Lady Beatrice needed to convert her entailed interest into full ownership. She would arrange a "common recovery" with a trusted associate or a "straw man" (a person used to hold title temporarily). This associate would fictitiously sue Lady Beatrice for the land. Lady Beatrice would then involve a "common vouchee" (the fictional defendant). The crucial step of the "feigned recovery" would occur when this vouchee *pretended* to lose the lawsuit, allowing the associate to "recover" the land. The associate would then immediately convey the land back to Lady Beatrice, but now in fee simple, free from the entail. With full ownership, Lady Beatrice could then legally mortgage the property to obtain the necessary funds.

• Example 3: Estate Planning and Consolidation

  The wealthy Montgomery family owned several parcels of land, each with different, complex entails from various ancestors. This made it difficult to manage or consolidate their holdings for future generations, and they wished to simplify the inheritance structure to create a more flexible family trust.

  To achieve their estate planning goals, the Montgomery family would employ "common recoveries" for each entailed parcel. For each piece of land, a family member or a trusted lawyer would act as the "demandant" in a *fictitious* lawsuit against the current tenant in tail. The tenant in tail would involve the "common vouchee." The "feigned recovery" would then take place, where the vouchee *pretended* to lose the case, allowing the demandant to "recover" the land. This process effectively broke all the existing entails, allowing the family to re-settle the land into a new, simplified trust structure with clear, full ownership, rather than being bound by outdated and restrictive inheritance rules.