mean time, that by construction and intendment of law the feoffor Dyer, 18ha.) ought to occupy the same in the mean time.

35 H. 6. Subpana, 22. 30 H. 6. tit. Devise.

are declared, and the fee is left undisposed 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 estate was descendible, and is in law treated as the old use. Ibid. But if the grantor takes a particular estate for life, or in feetail, or if he takes a fee differently modified, as an estate to him and his heirs till marriage, or a fee liable te 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 quality 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 covenantor in those conveyances, they merely serve to declare the use to the bargainee and convenantee. 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 conveyances by feoffment and lease and release, it is now universally the practice to declare the use in the same deed immediately after the habendum) derive their effect from the statute of Uses, and are called declarations 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 executed 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 quetion, 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 subsequent 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 use 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 became 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 statate required the use to be declared either previously to, or at the time of, levying such fines and recoveries. Therefore 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 writing, 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 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 Frauds, 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, showing 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. 3 P. 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 person 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 communi

(583)*
(584)
(585)

So where the feoffor disposes of the

profits for a

*And so it is when the feoffor disposeth the profits for a particular time in præsenti, the use of the inheritance shall be to the feoffor and his heirs, as a thing not disposed of; wherein it is to be observed, that lands and tenements conveyed upon confidences, uses, and

cation, 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 controlled 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 first deed may, after levying the fine or suffering 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 necessary. 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 leading 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 it is by no means certain, that such subsequent declaration may not be controlled by another averment by deed, although there be no variance in the fine or recovery. See Tregame v.. Fletcher, 2 Salk. 676. Shep. 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, ideots, 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. 2 Atk. 313. 13 Vin. 305. pl. 3. n. (M a.)

time in præ

of the inherit

trusts, are to be ruled and decided, if question groweth upon the con- particular fidences, uses, or trusts, by the judges of the law; for that it appear- senti, the use eth by section 463. and the next section, they are within the intend- ance is in ment and construction of the laws of the realm (1).

him,asathing undisposed of. (586)*

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. Ferres, 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 case, 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. Ravern, 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 coextensive 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, remainder-man 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. Popham, Dougl. 24. Argol v. Cheney, 22 Vin. (T. 6.) 236. pl. 1. We have seen, that uses may be declared on a lease and release 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 therefore a declaration of the uses of a release by a married woman (Gilb. Uses, 244), or an infant, would be void. 4 Cru. Dig. 227. Ante, vol. 1. p. 177. n. (41).

5th. Appointments.-The nature and general doctrine of powers of revocation and appointment, have been already explained, ante, p. 124. n. ( 3), and p. 578. n. (^); but it may be here observed, that these powers may be inserted in all conveyances which derive their effect from the statute of Uses; and, when executed, the uses originally declared cease, and new uses immediately arise out of the seisin of the cognizees, recoverors, or releasees, to the person named in the appointment; and the statute transfers the legal estate to the appointees, who, by that means, acquire the legal estate and possession. The powers usually reserved in settlements of leasing, jointuring, selling, exchanging, and charging, though not usually called so, are in fact powers of revocation, for they operate as revocations pro tanto, of the preceding estates. 4 Cru. Dig. 229. Supra, p. 578. n. (A). Powers are in general only inserted in conveyances which operate by transmutation of possession, that is, in declarations of uses of fines and recoveries, or in releases. 4 Cru. Dig. 231. Sugd. Pow. 117. By what words they may be created, see ante, p. 124. n. (q 3).

The doctrine of powers may be further considered, 1st. With respect to the persons to whom powers may be given.-Powers of revocation and appointment may not only be reserved to all those who are capable of disposing of lands and tenements, but also to some persons who have not by the common law a disposing power: for whenever a person to whom a power is given, executes it, the appointee under the power does not derive any interest from the person executing the power, he being considered as a mere instrument, to

VOL. II.

(1) See Mr. Butler's note at the end of the volume, note IX.

62

(587)* 272 a.

By statute 27

H. S. all uses are transfer

red into possession.

(588)* (589)* (a) 27 H. 8.

*But since Littleton wrote, all uses are transferred by act of parliament (a) into possession, so as the case which Littleton *(Sect. 462, 463,) puts, is thereby altogether altered; yet it is necessary to be known, what the common law was before the making of the statute, and may serve for the knowledge of the law in like case.

cap. 10. (Dr. & Stud. 98 a.)

carry into execution the intent of the person who created the power; but is in immediately by and under the instrument by which the power was created. By the common law a married woman cannot dispose of her own estate without a fine or recovery; but as the instrument, or attorney of another, she may convey an estate in the same manner as her principal could, because the conveyance is considered as the deed of the principal, and not of the attorney, and her interest is not affected. Upon the same principle it has been determined, that a married woman may execute a power, whether appendant, in gross, or simply collateral (Harris v. Graham, 1 Rol. Abr. 329. pl. 12. 2 Rol. Abr. 247. pl. 6. Gibbons v. Moulton, Finch. 346. Daniel v. Uply, Latch. 39. Godb. 327. pl. 419. Bayley v. Warburton, Com. Rep. 494. Tomlinson v. Dighton, 1 P. Wms. 149. Travel v. Travel, 3 Atk. 711. 2 Ves. 191, and as well over a copyhold as a freehold estate. Driver v. Thompson, 4 Taunt. 294. It is not material whether the power is given to an unmarried woman, who afterwards marries, Gibbons v. Moulton, supra; or to a woman while she is married, who afterwards takes another husband, Bayley v. Warburton, supra. Barnet v. Mann, 1 Ves. 157: in both cases she may execute the power, and the concurrence of her husband is in no case essential. Sugd. Pow. 150. Ante, vol. 1. p. 132. n. (N). But a power given to a woman being sole, cannot be executed by her during her coverture. Lord Antrim v. Duke of Buckingham, 1 Ab. Eq. 343. 1 Ch. Ca. 17. 2 Freem. 168. It is now usually inserted in the deed by which the power is created, that a woman shall be enabled to execute it, whether she be sole or married. The proper mode of creating a power of this kind, is to convey the lands to trustees, to the separate use of the wife, remainder to such persons, and for such estates, as she shall by any deed or writing under her hand, notwithstanding her coverture, direct or appoint: but although no such conveyance be made, and articles only are entered into previous to a marriage, by which it is agreed, that the wife shall have a power to dispose of any estate which may descend to her, it will be sufficient, and a court of equity will support such a power. 4 Cru. Dig. 238. Wright v. Lord Cadogan, 6 Bro. P. C. 156. Ambl. 468. Rippon v. Dowding, Ambl. 565. Et vid. Doe v. Staple, 2 T. R. 684. Dillon v. Grace, 2 Sch. & Lef. 456. But where the agreement is, that the wife may dispose of the estate by will, a will made before the marriage, although subsequently to the agreement, will be revoked by the marriage, unless expressly authorized by the articles to be made before marriage, Hodsden v. Lloyd, 2 Bro. C. C. 534. Doe v. Staple, 2 T. R. 684. 697; it will not however be inferred that the power was only to be executed in the event of the wife surviving the husband, from the circumstance that it was to be executed by will only, although a feme covert cannot make a proper will. Driver v. Thompson, 4 Taunt. 294. Sugd. Pow. 153. An infant may execute a power simply collateral, deriving its effect from the statute of Uses, Sugd. Pow. 153. And it has been thought, that an infant may execute even powers appendant, and in gross, if it be expressly inserted in the deed creating the power; that the infant may execute such power during his infancy, see Hearle v. Greenbank, 3 Atk. 695. 1 Ves. 298. 4 Cru. Dig. 236. 1 Prest. Abstr. 326. Sed vid. Sugd. Pow. 155, cited ante, vol. 1. p. 175. n. (35). That a power of appointment does not prevent the vesting of the estates limited in default of appointment, see Cunningham v. Moody, 1 Ves. 174. Doe v. Martin, 4 T. R. 39. Fearn. Cont. Rem. 4th ed. 298, 299. Madox v. Jackson, 2 Bro. C. C. 588. Vanderzee v. Acclom, 4 Ves. 771. Maundrell v. Maundrell, 7 Ves. 583. S. C. 10 Ves. 265. Osbrey v. Bury, 1 Ball. & B. 53. Ante, p. 130. n. (F); and that the same doctrine applies to personalty, see Sugd. Pow. 142; and where the money is absolutely given over in default of appointment, it is vested, subject to be divested by the execution of the power. Ibid. Et vid. Coleman v. Seymour, 1 Ves. 209. 2 Ves. 208. Gordon v. Levi, Ambl. 364. Reade v. Reade, 5 Ves. 748.

2dly. With respect to the execution of powers.-It is a general rule, that all the forms and circumstances prescribed by the deed creating the power, must be strictly observed. See Digges's case, 1 Co. 173. Thruxton v. Attorney-General, 1 Vern. 340. Hawkins v. Kemp, 3 East, 410. Bath and Montague's case, 3 Ch. Ca. 55. 2 Freem. 193. Kibbet v. Lee, Hob. 312. Ward v. Lenthal, 1 Sid. 143. Dormer v. Thurland, 2 P. Wms. 506. Thayer v. Thayer,

et licentia *domini regis, vel ejus justiciariorum (1). *(c) Talis *121 a.

modo levandi fines. Pl. Com. 357. (3 Co. 81. 8 Co. 51.) 5 Co. fol. 38. Teye's case.

granting of crown lands for life, though lands of the Duchy of Lancaster belonging to the king may be granted on building leases for ninety-nine years or three lives, by stat. 32 Geo. 3. c. 161. s. 1), are declared to be void; except leases for land for building, which may be granted for any term not exceeding ninety-nine years, from the date of making thereof, where the lessees agree to make erections of greater yearly value than the land, or where the greatest part of the yearly value of the premises consists of buildings, stat. 34 Geo. 3. c. 75. s. 3; and except leases of lands for gardens, &c. to be used with houses built either on crown lands or lands of other persons proprietors, which may be also granted for any term not exceeding ninety-nine years, to be computed from the date or making thereof, stats, 48 Geo. 3. c. 73. s. 1. 52 Geo. 3. c 161. s. 3; so as there be reserved upon every such grant or demise such annual rent as shall be deemed by the lords of the treasury, &c. a reasonable consideration for every such demise or grant, without taking any fine for the same, stats, 34 Geo. 3. c. 75. s. 4. 52 Geo. 3. c. 161. s. 3; but a discretionary power is vested in the treasury to ascertain the consideration either in rent only, or partly in rent and partly in fine, in