Definition
Recompense or recovery in value is a procedural fiction embedded in the judgment of a common recovery — a now-abolished conveyancing device used in English real property law to bar an entail and convert fee tail estates into fee simple. Specifically, it refers to that part of the common recovery judgment by which the tenant (the party holding the entailed estate) is declared entitled to recover lands of equal value from the vouchee — the third party called into the action as a warrantor — in compensation for the land lost by the vouchee's deliberate default.
In practice, the vouchee was typically a court official (often the "common crier") who had no real assets. The judgment against him for lands of equal value was therefore worthless in fact, but legally sufficient in form. The fiction of recompense gave the entire proceeding its theoretical justification: the tenant did not lose the land without remedy; he merely received a fictitious substitute. This nominal compensation is what transformed an otherwise void alienation of entailed land into a legally cognizable conveyance.
Common Confusion
Recompense or recovery in value is easily conflated with the broader term "common recovery" itself. The distinction matters: common recovery is the name of the entire fictitious legal proceeding; recompense or recovery in value is specifically the compensatory component of the resulting judgment — the legal fiction that made the whole device theoretically valid. Neither should be confused with a real recovery of land or money. The "recovery" here is entirely nominal.
Why It Matters in Research
This term appears almost exclusively in historical real property sources dealing with the period before fee tail was formally abolished or rendered obsolete in England and the American states. Researchers encountering it in early American deeds, conveyancing manuals, or English chancery records need to understand that no actual land exchange occurred. The recompense was a legal formality, not a transaction.
The key research trap: reading an old deed or judgment that references recompense or recovery in value as though it describes a genuine compensatory award will fundamentally misread the transaction. The purpose of the common recovery — and this component in particular — was to bar the entail and vest a fee simple, full stop.
For American corpus research, the term surfaces most often in colonial and early republic conveyancing materials, treatises on real property, and legislative debates over the abolition of fee tail (which occurred at different times in different states, some by Revolution-era statutes, others by later legislation). After fee tail was abolished in a given jurisdiction, the common recovery and this term with it became dead letters. Sources post-dating abolition in a given state that reference the term are doing so historically or in the context of title chains reaching back to pre-abolition grants.
Researchers tracing title to land originally held in fee tail in states like Virginia, South Carolina, or the early New England colonies may encounter common recovery language in chain-of-title documents. Understanding that the recompense was fictitious — and that the operative legal effect was the disentailment, not any exchange of land — is essential to correctly interpreting those instruments.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed., Supplemental) defines the term narrowly and accurately: it is that part of the common recovery judgment declaring the tenant entitled to recover lands of equal value from the vouchee, lost by the vouchee's default. Black's directs the reader to Blackstone's Commentaries at 2 Bl. Comm. 358–359, which remains the most accessible and authoritative historical account of the common recovery mechanism in English law.
Blackstone's treatment at those pages makes clear that the entire proceeding — including this compensatory fiction — was a contrivance of long standing by his time, openly acknowledged as artificial even by the courts that enforced it. The recompense existed to satisfy the theoretical objection that a tenant in tail could not simply alienate land bound by the terms of the original grant; the fiction that he received equivalent land elsewhere neutralized that objection formally without ever fulfilling it in substance.
Historical dictionaries generally do not elaborate on this term beyond the judgment-component description. Older property treatises — such as those of Cruise or Preston on estates — provide fuller procedural context, but the core legal meaning is stable across sources: nominal compensatory award, fictitious in practice, essential to the formal validity of the disentailment.
Jurisdictional Note
Common recoveries, and with them recompense or recovery in value, were a feature of English common law received into American colonial practice but were abolished or became irrelevant as American states eliminated fee tail estates by statute. The timing of abolition varied significantly by state. The term has no operative legal significance in any current American jurisdiction.