Definition
A phrase from the law of common recoveries, describing the nature of the judgment awarded to the demandant after the vouchee has disappeared or defaulted in the recovery proceeding. When a common recovery was suffered — a fictitious lawsuit used in medieval and early modern conveyancing to break an entail — the chain of proceedings required a voucher to warranty, meaning the tenant in possession would call upon a third party (the vouchee, typically a court officer called the common vouchee) to defend the title. When the vouchee failed to appear or defaulted, judgment passed against him to recompense the tenant for the lost land. That recompense was said to be "in value" — meaning the tenant was theoretically entitled to recover lands of equivalent value from the vouchee. Because the vouchee was invariably a man of straw with no real property to give, the recovery "in value" was a legal fiction, and its practical worth was nil. The entire mechanism existed to produce the legal result: a fee simple title in the demandant, freed of any entail or prior limitation.
Common Confusion
"In value" should not be confused with modern valuation concepts or damages terminology. The phrase is an archaic term of art embedded entirely within the procedural mechanics of common recovery. It bears no connection to present-value calculations, fair market value determinations, or any contemporary measure of compensation. Researchers encountering the phrase in historical conveyancing documents or equity pleadings should resist importing modern meaning into it.
Why It Matters in Research
The phrase will almost never appear outside historical materials — primarily pre-19th century English and American conveyancing records, equity court proceedings, and treatises on real property tenure. Its appearance in a document is a reliable signal that a common recovery was either being suffered or described. Because common recoveries were abolished in England by the Fines and Recoveries Act 1833 and fell out of use in American jurisdictions well before that (many states never recognized them or replaced them with statutory fee tail conversion), any source using "in value" in this sense is almost certainly pre-1833 and often pre-1800.
Researchers working with early land title chains in jurisdictions that recognized fee tail estates — including several original American states — may encounter the phrase in deed recitals or court records. Its presence signals a deliberate effort to bar an entail and convert a fee tail into fee simple. The recovery "in value" is the fictional quid pro quo that made the whole mechanism appear procedurally legitimate, even though everyone involved understood it as a legal contrivance.
For corpus researchers: Bouvier is the primary English-language legal dictionary source for this phrase. No modern dictionary is likely to carry it as a legal term of art.
Historical Dictionary Support
Bouvier's Law Dictionary provides the only dictionary-level treatment of this phrase and is concise on the point: the phrase describes what is recovered against the vouchee after judgment passes for the demandant in a common recovery, citing Bouvier's own Institutes at n. 2093. Bouvier does not elaborate on the fictional character of the recovery in value at the dictionary entry level, but his Institutes provide the fuller procedural account.
The historical sources are consistent in treating "in value" as a term of art specific to this single procedural context. There is no meaningful divergence among historical dictionaries on this point — the phrase is narrow and well-defined. What historical sources collectively underemphasize is the degree to which the recovery in value was universally understood to be worthless in practice; its function was entirely ceremonial, providing the legal pretext for the judgment that effected the actual conveyancing purpose.
Jurisdictional Note
Common recoveries were an English common law device. Their reception in American law was uneven: states that recognized fee tail estates and had active equity courts sometimes permitted them; others abolished fee tail by statute and rendered the procedure unnecessary. The phrase "in value" in American records is therefore largely confined to colonial-era and early republic documents from jurisdictions like Virginia, Massachusetts, and South Carolina that had functioning fee tail regimes.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia, Secured Transactions — Attachment (contracts_135): for background on how "value" functions as a term of art in commercial law contexts, which contrasts instructively with the purely fictional sense of "in value" here.