observations: "It is said that by the construction now put upon the deed, the intent of the parties will be defeated. If we were not construing a deed, I should feel disposed to give a liberal effect to the intention; but if all matters of convenience and inconvenience, which raise a presumption of intention, were to be taken into consideration, as affording rules for the construction of deeds, and are to have the effect of over-ruling the plain words of such instruments, the law will very soon be thrown into utter confusion." 6. Out of what seisin, shifting and contingent uses are supplied. -The scintilla juris.]-One of the most perplexing questions on the construction of the statute arises in every case of shifting or contingent uses. Thus, if land be conveyed to A. and his heirs to the use of B. and his heirs, until the marriage of C., and then to the use of C. and his heirs, the statute executes the use immediately in B. and his heirs, and consequently exhausts the whole seisin conveyed to A. Where is the seisin to serve the uses to C. and his heirs in the event of his marriage? By way of explaining this, it has been said that A. is actually seised to the use of B. in fee, with a possibility of being seised to the use of C. in fee; that the statute immediately takes all the present seisin of A. out of him, but leaves the ulterior possibility where it was, to be brought into operation by the statute on the occurrence of the contingency provided for. Now, the nature of this possibility, or scintilla juris, was such before the statute, that immediately upon the solemnization of the marriage, A. having till then been seised to the use of B., would, without further act, have become seised to the use of C.; and accordingly, since the statute, the seisin is supposed to return to A. upon the happening of the event, in order that it may serve the uses to C.; and that before the event happened, this possibility of the reverter of the original seisin should be considered as a possibility of seisin, or a scintilla juris. At best this is not very satisfactory; for it seems difficult to conceive upon what principle the seisin reverts to A. Another way of looking at the question is this: Before the statute, the Court of Chancery, on the solemnization of the marriage, would have enforced the use in favour of C. Now, the words of the statute are, that where any person is seised to the use of another, "in every such case all and every such person and persons that have, or hereafter shall have, any such use, or any use in remainder or reverter, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession, to all intents, constructions, and purposes, of and in such like estates as they had or shall have in use, trust, or confidence of or in the same." The effect of these words would appear to be, that every use, which was valid before the passing of the act, became after the act a legal estate; and hence by force of the words of the act, the use in favour of C. and his heirs, became, on the happening of the event provided for, a legal estate. The same difficulty which has been observed upon in the case of shifting uses occurs in the case of contingent uses: as if there be a conveyance to A. to the use of B. for life, remainder to the use of his first and other sons unborn successively in tail, remainder to the use of the right heirs of B. Here there being no sons in existence at the time of the conveyance, the seisin is immediately divested out of A., and vested in B. and his heirs. Where, then, is the seisin to serve the uses to the unborn sons in tail, as they successively come into existence? This was the great question in Chudleigh's case1; 11 Rep. 120 a. and it does not appear to admit of any more satisfactory explana tion than that which has been attempted in the case of shifting uses*. Declaration of uses.]—Where a conveyance was made to uses before the statute of frauds, no writing was necessary for the declaration of them. "There are," says Lord Holt, in Jones v. Mor ley2, “several ways to declare uses, either upon transmutation of 1 Ld. Raym. the possession or without it. If there is a transmutation of the 290. possession, as by fine, feoffment, or recovery, the declaration will be sufficient without consideration or deed. But if there be no transmutation of possession, then there must be some obligatory agreement or valuable consideration; because the use depending entirely upon equity, the chancellor will not compel performance, where there is no transmutation of possession, unless there is a valuable consideration or binding agreement. Bargain and sale will raise a use upon payment of money; but consideration of blood will not raise a use without deed. It is not absolutely necessary to make use of the word "use" in the declaration of The reader who wishes to follow out this subject, should read Chudleigh's Case, 1 Rep. 120 a; and the masterly discussions of the doctrine by Sanders, Essay on Uses and Trusts, uses of a fine, for any kind of agreement which manifestly shews the intent of the parties will be sufficient." When the use is raised by a bargain and sale, or a covenant to stand seised, it is immediately executed in the bargainee or covenantee by force of the statute. The law makes the declaration, and there is nothing for the bargainor or covenantor to do. But when the seisin, of which the uses are to be declared, is created by feoffment, fine, or other assurance operating by transmutation of the possession, the use, in the absence of any declaration to the con trary, results to the original owner, and consequently, if it be intended that the use shall go to a third person, there must be a declaration to this effect, and this must be in writing, signed by the feoffor, conusor, &c. If the seisin be raised by feoffment, lease and release, or bargain and sale enrolled, the use may be declared in the feoffment, release, or bargain and sale. It is frequently expedient, however, to declare them by a separate instrument. In marriage settlements of real estate, for instance, where the property is considerable, or the uses complicated, it is usual to convey the estates to trustees by one deed, and to declare the uses by another, executed at the same time. Where the seisin was raised by a fine or recovery, as the court of Common Pleas would not permit its records to be encumbered by the introduction of these declarations, the uses were necessarily declared by a separate instrument. Commonly the declaration is made by a deed. If this deed was executed previously to the levying of the fine or suffering the recovery, it was called a deed to lead the uses; when executed subsequently, it was called a deed to declare the uses. With respect to deeds executed prior to levying a fine or suffering a recovery, it was resolved in the 15 Rep. 26 a. Countess of Rutland's case1, 1st. That although they were but directory, and did not bind the estate or interest of the land, yet if the fine, recovery, or other assurance was pursued according to the indentures, there could not be any bare averment, against the indentures taken in such case; that after the making of the indentures, and before the assurance, by mutual agreement of the parties, it was concluded that the assurance should be to other uses; but if another agreement or limitation of uses was made by writing or by other matter previous to the fine or recovery as high or higher, then the last agreement should stand. 2nd. That if the form of the indenture was not pursued as to the quantity of the land, or the time within &c., an averment without writing might be made that the fine or recovery was to another use or intent. 3rd. That although the indentures were not pursued in circumstances of time, quantity, person, &c., yet if no other new-made agreement could be proved, the assurance would in judgment of law be to the uses contained in the indentures. 66 By the Statute of Frauds1, it was enacted:-"That all leases, Sect. 1. estates, interests of, freehold, or terms of years, or any un"certain interest, of, in, to, or out of any messuages, manors, 'lands, tenements, or hereditaments, made or created by livery "and seisin only, or by parol, and not put in writing and signed "by the parties so making or creating the same, or their agents "thereunto lawfully authorized by writing, shall have the force "and effect of leases or estates at will only, and shall not either "in law or equity be deemed or taken to have any other or "greater force or effect, any consideration for making any such "parol leases or estates, or any former law or usage to the con"trary notwithstanding." "Except nevertheless all leases not exceeding the term of "three years from the making thereof, whereupon the rent re"served to the landlord during such term shall amount unto "two-third parts at the least of the full improved value of the thing demised "2. "And moreover that no leases, estates, or interests, either of "freehold or terms of years, or any uncertain interest not being copyhold or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be "assigned, granted, or surrendered, unless it be by deed or note "in writing signed by the party so assigning, granting, or surren"dering the same, or their agents thereunto lawfully authorized "by writing, or by act and operation of law"3. "That By the 7th sect. of the same statute it was enacted, "all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law. "enabled to declare such trust, or by his last will in writing, or "else they shall be utterly void and of none effect." It will be noticed here that this statute does not speak of 'uses' in express terms; but it must be understood that the 2 Sect. 2. 3 Sect. 3. 1 Nightingale 2 Dowman's Case, 9 Rep. 8 a. 4 Ann. c. 10. first and third sections apply to 'leases, estates, and interests of freehold or terms of years,' whether created by common law conveyance or by the Statute of Uses. For the case of trusts the 7th section makes express provision." No technical or set form of words, therefore, is necessary to the declaration of the uses of a conveyance; for any writing sufficiently evidencing the intention of the party having the right to make the declaration and signed by him will do1. Previous to the passing of the Statute of Frauds, it seems to have been doubted whether a deed executed subsequent to the levying a fine or suffering a recovery, would operate to direct the uses of such fine or recovery; but it was at length determined 2, that such an indenture was sufficient for this purpose. The Statute of Frauds merely requires a writing signed by the party legally entitled so to do for the declaration of the uses. In a subsequent act, however3, made in explanation of this, the word "deed" is used. By the 15th section, after reciting that it had been doubted whether, since the Statute of Frauds, the declarations or creations of uses, trusts, or confidences of any fines or recoveries manifested by deed made after the levying or suffering of such fines or recoveries, are good and effectual in law, it is declared, "That all declarations or creations of uses, trusts, or confidences, of any fines or common recoveries of any lands, tenements, or hereditaments, manifested and proved by any deed to be made by the party who is by law enabled to declare such uses or trusts after the levying or suffering of any such fines or recoveries, shall be as good and effectual in the law as if the said last-mentioned act had not been made." It does not seem to be a necessary inference, that the word "deed" is here meant to be an interpretation of the word "writing" in the Statute of Frauds; it would rather appear that it ought to be considered with reference to Dowman's case, of which in point of fact this enactment is a mere legislative recognition. The doubts mentioned in the statute must have arisen from some notion, for which, however, no solid foundation could have been laid, that the Statute of Frauds had destroyed the power of declaring the uses of a fine by deed subsequent. By the combined operation of the assurance creating the seisin to serve the uses, and the declaration of these uses, the property is completely vested in the cestui que use, except in case of springing and shifting uses. As to these, a liability to vest in de |