CH. XLIII.

UNDER THE STATUTE OF USES.

And reason would that seeing the feoffment is made without consideration, and the feoffor hath not disposed of the

a man covenant to stand seised to the use of his wife, son, or cousin,
without saying in consideration of the natural love which he bears towards
them, yet the covenant will raise the use. Bedell's case, 7 Co. 40.
2 Wils.
22. 2 Rol. Abr. 784. As to the considerations of friendship, long ac-
quaintance, of being school-fellows, affection to a natural son, and that
the king is head of the commonwealth; they will not raise uses by way of
covenant to stand seised. See Plowd. 302. 2 Rol. Abr. 783. 2 Co. 15 a. b.
2 Sand. 82. Ante, 123. vol. 1. p. 147. n. (8). And, though in the case
of a covenant to stand seised, a use will arise to those who are within the
consideration, no use will arise to those who are strangers to it. Paget's
case, 1 Co. 154 a. Wiseman's case, 2 Co. 15 a. Smith v. Risley, Cro. Car.
529. Whaley v. Tancred, 2 Lev. 52. 54. A covenant to stand seised being
similar, in many respects, to a bargain and sale, it follows that no per
son can transfer lands by this mode of conveyance, who cannot be seised
to a use: nor can any species of property be transferred by covenant to
stand seised, which cannot be conveyed to a use. 4 Cru. Dig. 187. And
in order to render this conveyance effectual, the covenantor should have
a vested estate in possession, reversion, or remainder. Therefore a co-
venant to stand seised of land, which the covenantor shall afterwards
purchase, is void. Moor. 342. Cro. Eliz. 401. 2 Rol. Abr. 790. pl. 8.
Ibid. pl. 9. In the case of a covenant to stand seised, the estate conti-
nnes in the covenantor until a lawful use arises. 1 Co. 154 a. It is also
observable, that a bargain and sale, and covenant to stand seised, pass
no interest but that which the bargainor or covenantor can lawfully
transfer and therefore when either of these conveyances is made by a
tenant in tail, it cannot produce a discontinuance, Seymor's case, 10 Čo.
95. 1 Atk. 2; and when made by a tenant for life, it will not create
a forfeiture; neither will it destroy contingent remainders depending
upon such life-estate. 2 Sand. 33. 4 Cru. Dig. 193. Gilb. Uses, 140.
And as these conveyances only pass a use, and the legal estate and pos
session is transferred by the statute, and as no use can be limited to arise
out of a use, ante, p. 573. n. (A), 2 Prest. Conv. 482; it follows, that a
use cannot be limited upon the legal estate of the bargainee or covenan
tee, so as to be executed by the statute; but the second use will be a
mere trust. See Tyrrell's case, Dyer, 155 a. 1 And. 37. 1 Leon. 148.
2 Prest. Conv. 482, 483. 1 Prest. Abstr. 307. That a rent may be re-
served on a covenant to stand seised, sçe Rivetts v. Godson, W. Jo. 179.
3d. A lease and release; which is a conveyance operating by trans-
mutation of possession, and usually classed under those which derive their
effect from the statute of uses, but of which only one part is derived from
that statute, and the other part from the principles of the common law,
Though it is called a lease and release, it is in fact a bargain and sale for
a year, and a common law release, operating by way of enlargement;
and owes its rise to the following circumstances. The framers of the sta-
tute of uses foresaw, that freehold estates would thenceforth become
transferable by parol only, without any form or ceremony whatever. A
clause was therefore inserted in that statute, by which all bargains and
sales, of freehold estates, were required to be made by writing, indented
and inrolled. This provision, which, if it had not been evaded, would
have introduced an almost universal register of conveyances of the free-
hold, in the case of corporeal hereditaments, was soon defeated by the
omission to extend the statute to bargains and sales for terms of years,
4 Cru. Dig. 195, 196. In the times of Hen. 6, and Edw. 4. it was not
unusual to execute a lease for two or three years, completed by the actual
entry of the lessee, for the express purpose of enabling him to receive a
release of the inheritance; and which was accordingly made to him within
a short time afterwards. The lease and release, executed in this man-
ner, transferred the freehold of the releasor as effectually as if it had
been conveyed by fine or feoffment. 3 Reev. Hist. 357. When it was
observed that the statute of uses transferred the actual possession without
entry, the idea of a lease and release was adopted. A bargain and sale
for a year was made by the tenant of the freehold to the person to whom
the lands were intended to be released. This bargain and sale (which
does not require inrolment, 2 Co. 36 a. 8 Co. 94 a.), in consequence of
the consideration, makes the bargainor stand seised to the use of the bar

profits in the mean time, that by construction and intendment of law the feoffor ought to occupy the same in the mean time.

gainee; and then the use of the term for a year being vested in the bar. gainee, the statute of uses immediately transfers the possession, and vests the legal estate in the bargainee: and it is now clearly settled that the estate, vested in the bargainee upon the execution of the deed, is capable of receiving a release of the reversion before or without an actual entry by him. Cro. Car. 110. Cro. Jac. 604. Cart. 66. A release generally dated the day after the bargain and sale, is accordingly made; and thus an estate of freehold is transferred without entry, inrolment, or livery of seisin. 2 Sand. 62. 4 Reev. Hist. 355. This conveyance which has almost suspended that by feoffment, is said to have been invented by Serjeant Moore, at the request of the Lord Norris, to the end that some of his kindred or near relations should not take notice by any search of public records what conveyance or settlement he should make of his estate. Fabian Phelips Treat. on the Writ of Capias, 19 b. Barker v. Keate, 2 Mod. 252. 4 Reev. Hist. 335. 4 Cru. Dig. 196. 2 Bl. Com. 339. Regularly the lease should be dated on one day, and the release be dated on the next succeeding day; both these instruments however may be dated on the same day, see Ld. Raym. 276; and they may be, and gene. rally are, executed in the same instant of time. In correct practice the execution of the lease for a year ought to precede the execution of the release; but even though it should be proved that the release was executed before the lease, the court, in applying the rule which makes these two instruments parts of the same assurance, would, probably, support a title derived under these instruments. 2 Prest. Conv. 241. 363. 366. It is certain, however, that in the absence of evidence of the fact, the law would presume the priority in the execution of the lease, as the means of giving effect to the release. Taylor v. Horde, 1 Burr. 106, 107. It has been determined, that the recital of a lease for years, in a deed of release, is good evidence of such lease against the releasor, and all those who claim under him, but not as to others, without proving that there was such a deed, and that it was lost or destroyed. See 6 Mod. 44. 2 Lev. 108. With respect to the persons who may convey by this assur ance, it is observable, that when the release is founded upon a bargain and sale for a year, it is necessary that the person making the convey ance should be capable of standing seised to a use. Where the releasor

is incapable of standing seised to a use, then the estate for a year should be created by a lease at common law, with an actual entry by the lessee. 2 Sand. 63. Every species of property, which is capable of being conveyed to uses, may be conveyed by lease and release; and it is now clearly established, that estates in remainder or reversion, expectant on estates for life or for years, may be conveyed by lease and release. 2 Cas. & Op. 144. 2 Prest. Conv. 244. Ante, p. 502. n. (E 3). The convey ance by lease and release does not devest any estate, nor create a discontinuance or forfeiture, post, Sect. 598. Sect. 600. Sect. 606; neither can it destroy contingent remainders. Fearu. Cont. Rem. 4th ed. 473. With respect to resulting uses, it is observable, that when the release is to a man and his heirs, the releasee will be seised under the rules of the common law, since he has the seisin at the common law, and the use gives him nothing more or less than he had before. Bac. 63. 2 Cas. & Op. 281. 289. But if a particular estate be limited to the use of the releasee either for life or in tail, or if the use be declared to any other person or persons, then the use is executed by the statute. Cro. Car. 230. Bac. 64. It has been doubted, whether, in case of an omission of a declaration of the use in the release, the use will result to the releasor, or whether it will remain in the releasee, even though there be no consideration, except a nominal one of five shillings. In Shortridge v. Lampugh, 2 Salk. 678, the decision was against the resulting use; but Lord Ch. J. Holt admitted, that there might be a resulting use on a release. It is clear, that if the release be made for a valuable consideration, or for any purpose which requires that the scisin should remain in the releasee, as to the intent that a common recovery should be suffered; there would not be any resulting use. And in all cases a resulting use may be rebutted by internal or external evidence, which

CH. XLIII.

UNDER THE STATUTE OF USES.

And so it is when the feoffor disposeth the profits for a particular time in præsenti, the use of the inheritance shall

shews that the releasee was to be the beneficial owner. 2 Prest. Conv. 486.
Et vid. Bro. Feoff. al. Uses, p. 10. Perk. sect. 535. Dyer, 146. So no
use will result on a grant of an estate in tail, for life, or years; for every
gift of a particular estate implies a consideration, as it creates a service,
1 Cru. Dig. 454. And if the grantee of a particular estate assign his es-
tate, no use will result to him at law: but circumstances may induce
a court of equity to declare that there is a resulting trust. Castle v. Dod,
Cro. Jac. 200. So, as a will implies a gift, no use will result on a devise,
Bro. Feoff. al. Uses, p. 10: though an express use may be declared on the
gift of a particular estate, or on a devise. 2 Prest. Conv. 487. 1 Cru.
Dig. 456. If, however, particular uses are declared, and the fee is left un-
disposed of, the fee will result to the grantor. Ante, 23 a. p. 143. 2 Ld.
Raym, 802. So if the use of the fee be limited to the former owner, he
will be in of his old use, that is, of a new estate, and not the old estate;
but this new estate will be descendible in the same manner as the old
Ibid. But
estate was descendible, and is in law treated as the old use.
if the grantor takes a particular estate for life, or in fee-tail, or if he
takes a fee differently modified, as an estate to him and his heirs till mar.
riage, or a fee liable to be defeated by a shifting use; this will be an
estate of which he will be considered as the purchasing ancestor, and it
will be descendible though a fee, without regard to the descendible qua-
lity of the old use. 2 Prest. Conv. 487.

4th. Declarations of uses.-The conveyances by bargain and sale, and
covenant to stand seised, are in fact nothing more than declarations of
uses; for the use being served out of the seisin of the bargainor and co-
venantor in those conveyances, they merely serve to declare the use to the
bargainee and covenantee. But upon such conveyances as operate by way
of transmutation of possession, as a feoffment, fine, or recovery, whereby
the legal seisin and estate are vested in the feoffee, cognizee, or recoveror,
a use may be declared in favour of a third person, by a deed or writing
distinct from the conveyance, by which the possession is transferred,
and such use will immediately arise to such third person out of the seisin
of the feoffee, cognizee, or recoveror; and the statute will transfer the
actual possession to such use, without any entry or claim. The deeds by
which the uses of fines and recoveries are declared (for upon the con-
veyances by feoffment and lease and release, it is now universally the
practice to declare the use in the same deed immediately after the haben
dum) derive their effect from the statute of uses, and are called declara,
tions of uses, where they are executed previous to the levying a fine, or
suffering a recovery, they are called deeds to lead the uses: but if exe
ented subsequent to a fine or recovery, they are then called deeds to
declare the uses of them. 4 Cru. Dig. 206. After the stat. 27 H. 8,
c. 10, it became a question, whether if a recovery were suffered, or fine
levied, without any previous declaration of the uses, any subsequent deed
could direct them? For it was thought, that upon suffering the recovery
or levying the fine, the use resulted to the recoveree or conusor, which
resulting use the statute immediately executed: so that the use being once
vested and executed by the statute, it could not be devested by any sub,
sequent declaration. However, in Dowman's case, (9 Co. 7 b. 28 Eliz.
Et vid. Bessett's case, Dyer, 136 a.) it was determined, that although the
use resulted to the recoveree or conusor until the subsequent declaration,
yet, when that was made, the nse was immediately executed according to
the declaration. Soon after the stat. 29 Car. 2. c. 3. s. 7, which directs,
that all creations and declarations of uses shall be in writing, it again be.
came a doubt, whether resulting uses upon fines and recoveries were not
so executed as to exclude any subsequent deed, see Gilb. Uses, 62; for it
was supposed, that the statute required the use to be declared either pre
viously to, or at the time of, levying such fines and recoveries. There-
fore by the stat. 4 Ann. c. 16. s. 15, declarations of the uses of fines and
recoveries, manifested by any deed, made by the party, after the levying
of such fines, or suffering such recoveries, shall be as effectual as if the
29 Car. 2. c. 3. had not been made. 1 Sand. 174, 175. It is observable,
that though the word "deed" is used in the 4 Ann. c. 16, instead of writ
ing, yet the statute does not repeal the clause alluded to in the statute of
frauds; it is only explanatory of it, and if taken literally, can only be

So where the feoffor
disposes of the profits
for a particular time in
præsenti, the use of the
inheritance is in him,
as a thing undisposed

of.

be to the feoffor and his heirs, as a thing not disposed of; wherein it is to be observed, that lands and tenements con

extended to declarations of uses made subsequent to a fine or recovery, and not to those made prior. And the clause in the statute of frands, which requires that declarations of uses, trust, and confidence, should be in writing, extends, in the case of fines, to third persons only, and not to the cognizors and cognizees of the fine; for the resulting use to the cognizors may be rebutted in favour of the cognizees, by parol evidence, shewing such to have been the intention of the parties. Dougl. 25. 4 Cru. Dig. 210. No technical words are necessary in a declaration of uses; whenever the intention of the parties can be collected in the limitation of the uses of a fine or recovery upon any expression in a precedent or subsequent declaration or conveyance, such declaration or expression is sufficient to declare the uses of the fine or recovery. 3P. Wms. 208. 1 Ld. Raym. 290. 12 Mod. 162. The declaration of the uses, however, must be certain, and that especially in three things, in the persons to whom, the lands, &c. of which, and in the estates, by which the uses are declared; and if there want certainty in either of these, the declaration is not good; and it must be complete in itself without any reference to indentures or other writings to be made afterwards, for then it is but an imperfect communication, and no complete declaration. Shep. Touch. 6th ed. 519. But it is not necessary, that there should be a consideration expressed in a deed to lead or declare the uses of a fine or recovery; though, we have seen, that in the case of a bargain and sale, or covenant to stand seised, a consideration is absolutely necessary. Supra, p. 579, 580. Et vid. ante, 123 a. vol. 1. p. 147. n. (8). 1 Ld. Raym. 290. With respect to the cases in which the first declaration shall be controled by the second, it is observable, that if there be a deed leading the uses of a fine or recovery, those uses may be altered, varied, or absolutely revoked, previously to the levying the fine or suffering the recovery. When the fine or recovery is conformable in time, persons, and other circumstances, with the deed leading the uses of it, then the variation, alteration, or revocation of the uses may be effected; 1st. By a deed or other instrument of as high nature, as the preceding deed or instrument: but in this case a deed leading the uses of a fine or recovery cannot be varied by a mere writing without seal, Countess of Rutland's case, 5 Co. 26 a. 2dly. By the mutual consent of all parties concerned in interest: such consent, however, must be expressed by matter equally solemn with that declaring the former uses. See Shep. Touch. 519. Stapilton v. Stapilton, 1 Atk. 2. 1 Sand. 182, 183. 4 Cru. Dig. 216. 2 Prest. Conv. 45, 46. But where there is a deed leading the uses of a fine or recovery to be subsequently levied or suffered, and the fine or recovery varies from the preceding deed in time, persons, or other circumstance, then the uses of the first deed may, previously to the fine or recovery, be varied by another instrument, although such subsequent instrument be not a deed, but merely a writing without seal, Jones v. Morley, 2 Salk. 677; and although all the persons interested under the first declaration are not parties to the second, Countess of Rutland's case, 5 Co. 25 b. and the uses of the firs' deed may, after levying the fine or suffer. ing the recovery, be varied, Jones v. Morley, supra. Shep. Touch. 520; though, in this case, if the doubt suggested by the 4 Ann. c. 16. s. 15. be sufficiently grounded, (see Sugd. Gilb. Uses, 111. n.) a deed will be neces sary. 1 Sand. 187-189. When, however, the fine, or recovery, does not vary in circumstances from the deed leading the uses of it, no subsequent declaration is admitted to control the operation of the previous deed or instrument. Shep. Touch. 520. Salk. 676. Tregame v. Fletcher, 9 Co. 10 b. 11 a. Comb. 429. 1 Atk. 9. 2 Prest. Conv. 42. And although the fine, or recovery, does not altogether correspond in circumstances with the deed or instrument leading the uses of it, yet if there be no subsequent declaration of the uses, the fine or recovery shall still enure to the uses of the lead. ing deed or instrument. Shep. Touch. 520. 2 Co. 76 a. Havergill v. Hare, 2 Rol. Abr. 799. 1 Atk. 7. 13 Vin. 30 b. pl. 6. pa. 2. Where there is no preceding limitation of the use, the uses of the fine or recovery may be subsequently declared, according to the 4 Ann. c. 16. s. 15. by deed; but is is by no means certain, that such subsequent declaration may not be controled by another averment by deed, although there be no variance in the fine or recovery. See Tregame v. Fletcher, 2 Salk. 676, Shep,

veyed upon confidences, uses, and trusts, are to be ruled and decided, if question groweth upon the confidences, uses, or

Touch. 521. Vavisor's case, Dyer, 307 b. 1 Sand. 190. In the case of two contradictory declarations in the same instrument, the rule is, that the first declaration shall prevail, and the second be void. Southcoat v. Manory, Cro. Eliz. 744. S. C. Moor. 680. nom. Wilmot v. Knowles. It is now the usual practice, where a fine is intended to be levied to uses, to execute a deed previous to the fine, in which the intended cognizor covenants to levy a fine, and a declaration is inserted in the deed, of the uses to which the fine, when levied, shall enure. And where a recovery is intended to be suffered, a deed is executed to make a tenant to the præcipe with an agreement to suffer a recovery, and a declaration of the uses of the recovery is inserted in the deed. 4 Cru. Dig. 220. With respect to the persons who may declare or limit uses, not only all those to whom the law, in other instances, gives a disposing power, are capable of declaring uses, but also some persons who are incapacitated from conveying away their estates by any other kind of assurance. Thus the king may declare uses upon his letters patent, though indeed the patent of itself implies a use. Bac. Uses, 66. The queen may also declare uses. Ibid. So infants, idiots, or persons of nonsane memory, may declare uses upon a fine or recovery; which declaration of uses will continue valid as long as the conveyance, upon which the uses are declared, remains of force. Beckwith's case, 2 Co. 58 a. Lewing's case, 10 Co. 42 b. Mansfield's case, 1 Co. 124. Bac. Uses, 67. But in cases of this kind the court of chancery will interfere. See 2 Ves. 403. 3 Atk. 315. 13 Vin. 305. pl. 3. n. (M a.) 4 Cru. Dig. 226. 1 Prest. Abstr. 325. And it has been determined, that an agreement entered into by an infant, to levy a fine, and suffer a recovery, when he came of age, to certain uses, will not operate as a declaration of the uses of such fine or recovery. Nightingale v. Ferrers, 3 P. Wms. 207. Frost v. Wolverston, 1 Stra. 94. As a married woman is allowed to join with her husband in levying a fine, or suffering a recovery, and to bind herself by those assurances, she is also allowed to join with her husband in declaring the uses of such fine or recovery. If the husband, in such case, alone declares the uses, his declaration will bind the feme, (although an infant, 2 Rol. Abr. 798. 22 Vin. 232. pl. 2.) unless her dissent appears; for as she joined with her husband in the fine or recovery, it shall be presumed that she agreed with him in the declaration of uses, unless the contrary is proved. Beckwith's case, 2 Co. 57 a. Lusher v. Banbong, Dy. 290 a. Harrington's cuse, Ow. 6. And if she acquiesce for any length of time after her husband's death in the declaration of uses made by him, she will be bound by the fine or recovery. Swanton v. Raven, 3 Atk. 105. The wife alone cannot declare the uses of a fine, levied by her and her husband, of her land, because being sub potestate viri, she cannot limit the use without the concurrence of her husband; on the other side, the husband, who has no estate in his own right, cannot declare the uses of such a fine, without the express or implied concurrence of the wife; so that the one is not sui juris, although she has the estate, and the other is sui juris, but has not the estate : hence it follows, that when they make different declarations, such declarations are both void. Beckwith's case, 2 Co. 57 b. But if the husband and wife agree in the declaration of the uses of part of the land, and vary in the declaration of the residue, it will be good for the part in which they agree, and void for the residue. Ibid. 58 a. Gilb. Uses, 216. The right to declare uses is co-extensive with the estate or interest which each of the parties has in the lands. Therefore, if a tenant for life, and the remainder-man or reversioner, join in levying a fine or suffering a recovery, they may declare the uses according to their respective estates in the land. 2 Co. 57 b. So joint-tenants may each declare different uses of their respective shares. 2 Co. 58 a. 22 Vin. 236. pl. 1. Palm. 405. But where a fine was levied by tenant for life, remainderman in tail, and reversioner in fee, it was held, that a declaration of uses by the tenant for life, and remainder-man in tail, did not bind the reversioner. Roe v. Pophum, Dougl. 24. Argol v. Cheney, 22 Vin. (T. 6.) 236. pl. 1. We have seen, that uses may be declared on a lease and re#lease as well as on a fine or recovery, supra, p. 583. 2 Cas. & Op. 289; but it should be observed, that no person can declare the uses of a release, who is not capable of transferring lands by that conveyance; and there