Definition
Formedon in the descender was a real action — a common law writ — by which an heir in tail sought to recover lands from a third-party tenant when the tenant in tail had alienated the property or been disseised of it and had since died. The action was available to the heir as the person next entitled under the original gift in tail (the fee tail), and it ran against whoever held the freehold at the time the writ was brought. It is one of three forms of the broader writ of formedon, the others being formedon in the remainder and formedon in the reverter. As a real action, it sought recovery of the land itself, not merely damages.
The distinguishing feature of the descender form is the downward direction of entailment: the claim descended from the original donee through the bloodline to the heir bringing the action. Where the claim moved sideways to a remainderman, or back up to the grantor, different writs applied.
Common Confusion
FORMEDON IN THE DESCENDER / FORMEDON IN THE REMAINDER / FORMEDON IN THE REVERTER: The three forms of formedon are distinguished by who brings the action and in which direction the entailed interest runs. Formedon in the descender is brought by an heir of the donee in tail — the claim descends through the donee's line. Formedon in the remainder is brought by a remainderman whose interest was to take effect after the fee tail expired. Formedon in the reverter is brought by the donor or the donor's heir when the entail has run out and the land has not passed to a remainder. Conflating these matters in historical research because the applicable statute of limitations, the parties required, and the pleading form differed among them.
Why It Matters in Research
This term is almost exclusively a fixture of historical legal research. Formedon in the descender, along with all real actions, was abolished in England by the Real Property Limitation Act of 1833 (3 & 4 Will. IV, c. 27, § 36), and the practical need for such writs had been eroding since the Statute of Uses (1536) and the development of the common recovery as a method of barring entails well before abolition.
Researchers encounter this term most often in three contexts: (1) pre-nineteenth-century English property law materials dealing with fee tail and the machinery for recovering entailed lands; (2) treatises and abridgments from Coke through Blackstone that set out the taxonomy of real actions; and (3) American colonial and early republic sources, where real actions were occasionally retained or adapted before most American jurisdictions abolished them by statute or constitutional provision.
The specific trap in historical sources is that formedon in the descender presupposes a functioning fee tail. Where fee tail had been converted by statute to fee simple — as many American states did early, some as directly as converting every conveyance in fee tail into a fee simple by operation of statute — the writ became a dead letter and will not appear in case law. Researchers tracing land title disputes in such jurisdictions will find the underlying entail problem resolved through other procedural forms, chiefly ejectment.
Note also that historical sources sometimes discuss the statute of limitations applicable to formedon specifically. Under the Statute of Limitations of 1623 and earlier limitation acts, different periods applied to real actions than to personal actions, and formedon had its own history of limitation periods extending and contracting across English legislation. Burrill's entry, though fragmentary in the surviving text, points toward the abolition context and the distinction between forma verbalis and forma legalis — a reminder that the formal requirements of the writ were themselves subjects of legal controversy.
Historical Dictionary Support
Black's Law Dictionary provides a clean, serviceable definition, citing Blackstone's Commentaries (3 Bl. Comm. 192) for the basic description of the writ's operation. This is the expected primary reference: Blackstone's treatment of real actions in Book III systematically distinguishes the three forms of formedon and situates each within the broader architecture of common law land recovery. The definition in Black's accurately captures the two operative facts: alienation or disseisin by the tenant in tail, and the death of the tenant in tail before recovery.
Burrill's Law Dictionary entry, as it appears in the source material, is fragmentary — the text breaks off into a general discussion of forma verbalis versus forma legalis drawn from Coke. This divergence is notable. Burrill appears to have been gesturing toward the formalistic character of the writ itself, which, like all real actions, was notoriously technical in its pleading requirements. The slightest error in the form of the writ could be fatal. Coke's distinction between verbal form and legal form — the letter of the act versus its legal operation — was directly relevant to how courts construed the sufficiency of formedon pleadings. What Burrill's entry loses in definitional clarity it partially recovers in historical texture: the writ was not merely a remedy but an exercise in legal formalism that the nineteenth century found intolerable, hence abolition.
Neither dictionary addresses the American reception of formedon, which is understandable given that by the time these dictionaries were compiled, real actions had largely disappeared from American practice as well. Researchers needing American treatment should consult early American property treatises and state statutory histories.
Jurisdictional Note
In England, formedon in the descender was abolished by statute in 1833. In the United States, most jurisdictions abolished real actions either by early legislative enactment or through adoption of Field Code reforms in the mid-nineteenth century. A small number of American jurisdictions retained fee tail and associated real actions into the nineteenth century; Massachusetts is sometimes cited as an example of longer persistence. Researchers should verify the specific abolition date for any American jurisdiction before assuming the writ was unavailable.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Fee Tail; Real Actions; Writ of Formedon