feazance of other uses which have already vested, is of the very The right of declaring the uses of a conveyance is co-extensive with the quantity and nature of the estate or interest which each of the parties has in the land: and therefore if tenant for life and remainder-man, or reversioner, joined in levying a fine or suffering a recovery, they might declare the uses according to their respective estates in the land. And if the tenant for life alone declared the uses, the declaration would not affect the remainderman or reversioner1. If the husband and wife levied a fine, and the husband alone declared the uses, it bound the wife, unless her dissent appeared; if they made different declarations they were both void2. Where husband and wife, seised of the fee simple of an estate, subject to his wife's title to dower, conveyed the estate to a purchaser, and the husband entered into the usual covenant to levy a fine to bar his wife's dower, it was not necessary for the wife to join in the declaration of the uses to the purchaser. Where, in the same instrument, there are two declarations of the use differing from each other, the first prevails and the second shall be void3. And in respect to the right to declare the use, the decisions upon fines and recoveries are equally applicable to disentailing deeds. Resulting uses.]-If a person, before the statute, had conveyed his lands to another without consideration, and without any If all the clauses (in a deed) cannot stand together, the first shall stand rather than the last. Ib. 19 Rep. 57 b; Roe v. Popham, 1 Doug. 25. Beckwith's Ca., 2 Rep. 56; Raven, 3 Atk. Swanton v. 105. Southcoad v. Manory, Cro. Eliz. 744*. declaration of the uses of such conveyance, he continued to be entitled to the use or pernancy of the profits of the lands so conveyed. The statute made no alteration in this, and therefore it became an established principle, that where the legal seisin and estate in lands is transferred by a common law conveyance, and no use is declared, and there is no consideration or other evidence of intent, the use results back to the original owner, for it cannot be supposed that the estate was intended to be given 'Co. Litt. 23. a. away1. Upon the same principle, where only part of the use is limited, so much as the grantor does not dispose of remains in him; as if a feoffment be made to the use of the heirs of the body of the feoffor, the use is undisposed of during his life; it therefore results, and then he has an estate tail executed in him 2; or if the use, in the first instance, be limited to the feoffee in tail, without any farther declaration, the use in reversion will result to the feoffor. As a resulting use arises by operation of law without writing, so it may be rebutted by parol evidence without writing*. Lord Mansfield, speaking of a fine levied, and no uses declared, says, "the form of it is to give a title to the conusee, but in truth it is for the convenience of the conusor; and from the constant usage, the presmption is, that it is levied to his use. This indeed is liable, like all other presumptions, to be encountered by contrary evidence"3; and for this purpose parol evidence is sufficient, and may be inferred even from the nature of the transaction; and thus in Lord Anglesey v. Lord Altham4, A. levied a fine, and afterwards suffered a common recovery, wherein the conusee was tenant, and there being no deed in the case, it was objected that the The habendum clause in the common conveyance by lease and release, affords an example of a needless anxiety to rebut a resulting use. The habendum generally is to "A. and his heirs to the use of the said A., his heirs and assigns for ever." These latter words, "to the use of the said A., his heirs and assigns for ever," are inserted to rebut the presumption of a resulting use to the releasor, which is wholly unnecessary, since the payment of the purchase money sufficiently points out the destination of the use, and repels the presumption of its resulting. It will be observed, that the habendum is-and this is the ordinary form-" to A. and his heirs to the use of &c.," not "to A. his heirs and assigns to the use of &c. ;" and this is correct, because the seisin in A. being only momentary, and the use executed instantly, there could not be any assigns from him. use of the fine resulted to the conusor; and though the intent of the fine might be to make a tenant to the præcipe, yet no use or trust can be averred since the Statute of Frauds. Sed non allocatur, for at common law the use was always intended to be to the use of the feoffee or conusee, and in pleading never was averred; but if it be to the use of the feoffor, or conusor, then it must be averred. 2ndly, The Court held, that the party was in by the fine immediately, and so there was a good tenant to the præcipe. 3rdly, The statute extends, not to uses by operation of law, but to such uses as are to a third person, and that neither the conusor nor the conusee could aver the fine to be to the use of a third person since the Statute. The doctrine of resulting uses only extends to cases where an estate in fee simple passes; for if a conveyance be made to another in tail without any consideration or declaration of uses, no use will result to the donor; because, on a conveyance of this kind, an imperfect tenure is created, as between the donor and donee, which amounts to a consideration. The same principle applies to a lease of lands for life or years1; and in the latter case, although a use should be declared as to part of the estate, no use will result as to the residue2. As a devise imports a bounty, no use results to the heir, unless an intention to that effect can be collected from the words of the will. Finally, where an use is expressly limited to the owner of the estate, he will not be allowed to take any resulting or implied use inconsistent with that expressly limited to him3. 'Gilb. Us. 65. Castle v. Dod, Cro. Jac. 200. 3 Adams v. 679. If a recovery was suffered by a tenant in tail, without any de- Savage, 2 Salk. claration of use, the estate resulted to him in fee simple; and if uses or trusts were declared which could not take effect, the consequence merely was to leave the fee in the tenant in tail. And now that recoveries are abolished, the same principles will manifestly apply to a disentailing deed. It was held upon the Statute of Uses, that, where the same use is limited to the owner of the estate as would have reverted to him in case no declaration of that use had been made, the limitation was inoperative, and that he was in by way of resulting use. As where A., seised of an estate in fee, conveyed the estate to the use of his eldest son and his wife, and the heirs male of the body of his son, remainder to the use of his own right heirs, it was resolved, that the use limited to the right heirs of A. was the an Tanner v. Radford, 6 Sim. 29. Read v. Errington, Cro. Eliz. 321. * Sect. 3. cient use, which was never out of him, and was, in fact, a reversion in him to grant or charge, and would descend from him to his heir, as if it had not been mentioned: that the limitation to his right heirs was, therefore, void, being no more than what the law had already vested in him1. With reference, however, to this doctrine, it is to be recollected, that by the stat. 3 & 4 W. 4, c. 106, it has been enacted-"That when any land shall have been limited by any assurance, executed after the thirty-first day of December, one thousand eight hundred and thirty-three, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate, or part thereof" 2. CHAPTER IV. ON TRUST OR EQUITABLE ESTATES. Introductory observations, 65.-Express and implied Trusts, 67.-Trusts executed, and Trusts executory, 78.-General incidents and qualities of trust estates, 84.-Declaration of Trusts, 88.-Trusts to preserve contingent remainders, 90.Trusts for sale, 91.-Conversion of personal estate, by will, 102,-by deed, 105.-Trusts of accumulation, 106.-Trusts of terms to attend the inheritance, 114.-Trusts for the separate use of married women, 127. Introductory observations.]—The courts of law having held, "that there could be no such thing as an use upon an use, but that where the first use was declared there it was executed, and must vest for that estate; and therefore on a limitation to A. and his heirs, to the use of B. and his heirs, in trust for D. and his heirs, B.'s estate was held there to be executed by the statute, and D. took nothing. Of this construction equity took hold, and said that the intention was to be supported. It is plain B. was not intended to take; his conscience was affected: to this the reason of mankind assented, and it has stood on this footing ever since; and by this means a statute, made upon great consideration, introduced in a solemn and pompous manner, by this strict construction has had no other effect than to add at most three words to a conveyance1." Before the statute, the words use and trust were synonymous, Hopkins, 1Atk. and both are used in it. Since that period, or at all events since the time when the courts at law first determined that the statute did not apply to all uses, the term uses is confined to such as are executed by the statute, and the term trusts to such as are not, and can only be enforced in equity. A trust, therefore, does not differ from what an use was before the statute, and may be described as being a right in equity to take the rents and profits of 1 Hopkins v. 591. |