BROUGHTON v. LANGLEY. KING'S BENCH. 1703. [Reported 2 Salk. 679.1] May be word instead of "use" profils ONE seised of lands in fee, devised them to trustees and their heirs, to the uses, intents, and purposes hereinafter mentioned, viz. to the intent and purpose to permit A to receive the rents and profits for his life, and after that the trustees should stand seised of the premises to the use of the heirs of the body of A. with a proviso, that A. with the consent of his trustees, might make a jointure for his wife; and the question was, Whether A. had an estate-tail executed, or not? And it was adjudged he had. HOLT, C. J. pronounced the judgment of the court, and gave these reasons: 1st, That this would have been a plain trust at common law, and what at common law was a trust of a freehold or inheritance is executed by the Statute, which mentions the word trust as well as use; and the case in 2 Vent. 312, Burchet and Durdunt, is not law; and that the change of expression in the principal case by using the word permit in the first clause, which are words of trust, and afterwards making mention of a use, is immaterial, in regard trusts at common law and uses are equally executed by the statute. 2dly, It was held, That a power to make a jointure, does not necessarily exclude an estate in tail, or an intent to give it; because tenant in tail, without discontinuing or barring the tail, cannot make a jointure; and so this power has its use. LORD ALTHAM v. EARL OF ANGLESEY. [Reported Gilb. 16.] TENANT in tail, remainder in tail, with remainders over. Tenant in tail, having a mind to dock the intail, and but the remainders, levies. a fine with proclamation sur conusance de droit come ceo, &c. to J. S. and his heirs, in order to make him tenant to the precipe; but no use of this fine was declared Seven years afterwards, a precipe was brought against J. S. who came in and vouched the conusor of the fine, who vouched over the common vouchee, and the question here was, if J. S. were a good tenant to the precipe, and the common recovery well suffered. 1 See s. c. reported at greater length, 2 Ld. Raym. 873. As to the first1 question, it was resolved by HOLT, POWEL, Powis, and GOLD, that the said J. S. was a good tenant to the precipe, and that the recovery was well suffered, and all the remainders barred. This question doth arise principally upon the Statute of Frauds and Perjuries, 29 Car. 2, c. 3. Whereby 't is enacted, that 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 else by his last will in writing, or else they shall be utterly void, provided always, that where any conveyance shall be made of any lands, or tenements, by which a trust or confidence shall or may arise, or result by implication or construction of law, or be transferred or extinguished, by an act or operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect, as the same would have been, if this Statute had not been made. It was unanimously agreed, that this Statute did not extend to this case, viz. where there is only cognizor and cognizee, and that it extended only to third persons; though it was objected, that in this case, when, by the fine, the legal estate was conveyed to J. S. and his heirs, and no use declared of it, that the use did result to conusor and his heirs, and then before the precipe was brought, the legal estate was out of the conusee, by virtue of the Statute, for transferring uses into possession. But HOLT, C. J. and POWEL held in this case, that when a fine is levied, or a feoffment made to a man and his heirs, the estate is in the conusee and feoffee, not as an use, but by the common law, and may be averred to be so; and for the form of pleading the averment, you may see Co. Ent. 219, 220. Where a fine was levied, and the conusee in pleading averred, Cujus quidem finis pretextu predict', J. S. fuit seisitus de, &c. cum pertinent' in dominico suo ut de feodo, and in Plowd. 477, 478. A feoffment was pleaded habendum to A. and his heirs for ever, Virtute cujus feoffment idem A. fuit seisitus de, &c. cum pertinent in dominico suo ut de feodo; and in this case it plainly appears, that the intent of the fine, was to make the said J. S. a tenant to the precipe, for the common recovery, and when the common recovery is effected, a use shall arise by operation of law from the conusor and his heirs,' from whom the estate first moved. HOLT, C. J. held, that uses were not within this Statute, but that the Statute did restrain only the operation of trusts and confidences in 1 [A second point was on the admissibility of certain depositions. case relating to this is omitted. - ED.] The part of the 2 See the case of Long and Buckridge, Trin. 4 Georgii, adjudged, that the averment of Cujus quidem finis pretextu, &c. is only expressio eorum quæ tacite in sunt, & nihil operatur, and that prima facie, the fine shall pass the estate to the conusee; and to bring the use back to the conusor, the conusor must show, that the intent was not to give it to the conusee; for else the conusee shall be deemed to take the estate by the common law. And this case of Lord Anglesey and Altham was there held to be good law. chancery; but all the other justices held the contrary, and that uses were within it; for the common law makes no distinction between trusts and confidences, and uses; and there was no foundation to make a difference between trusts and uses, since the Statute 27 H. 8, though they have done it in chancery. And now, since the Statute of Frauds, 29 Car. 2, c. 3, no stranger can take a use by any parol averment. If a fine be levied to a man and his heirs, to the use of him and his heirs, in this case, he shall take by the common law, and not by way of use; and in this case, there may be a parol averment, to prevent a resulting use to the conusor in fee; for when the fine is levied, an use doth immediately arise, either to the conusor and his heirs, or to the conusee and his heirs; and when there is a subsequent deed, it only shows what the intent of the parties was, at the time of the fine levied. 9 Co. Dowman's Case; so that when a fine is levied, an use doth arise by implication of law, to the conusee and his heirs, and consequently this case is excepted out of the Statute. The fine and recovery here make but one conveyance; and if the use should result to the conusor and his heirs, it would destroy the middle part of the conveyance, and defeat the plain intention of the parties, which was to put the use in the conusee; and this is evident, because the conusor, by suffering himself to be vouched, has owned it. And how could tenant in tail make himself tenant in fee, if so be this must be construed a resulting use? As to an objection that was made, that there might be a long time between the fine and recovery; admitting that there had been a long time between the fine and recovery, yet there it may be made good by a parol averment, before the Statute of Frauds, and by writing since, upon the reason of Dowman's Case, if nothing were done intermediate to the contrary. Dyer, 136. GOLD said, that if a fine sur' conusans de droit come ceo, &c. were levied, a use did result to the conusor; but if the conusee did grant and render the lands to the conusor in tail, the conusee was seised of the reversion to his own use. Moor. 156, Dyer, 311. So if a feoffment be made to A. and his heirs, upon condition to enfeoff B. and his heirs, without limiting or declaring any use. In this case, when A. has enfeoffed B. and his heirs, an use shall arise to B. and his heirs; and in all cases of common recoveries, a tenant to the precipe shall be presumed, and that as well in a new recovery as in an old one. Intent was tal Conuser should have sise ARMSTRONG v. WOLSEY. COMMON BENCH. 1756. [Reported 2 Wils. 19.] EJECTMENT, tried at Norwich before Parker, Ch. Baron, who reserved this short case for the opinion of the court. A. B. being in possession of the lands in question levied a fine sur conusans de droit come ceo, &c. with proclamations to the conusee and his heirs, in the 6th year of the present king, without any consideration expressed, and without declaring any use thereof; nor was it proved that the conusee was ever in possession. So that the single question is, whether the fine shall enure to the use of the conusor or the conusee; and after two arguments the court was unanimous, and gave judgment for the plaintiff, who claimed as heir of the conusor. Mconsistent CURIA: In the case of a fine come ceo, &c. where no uses are desistemeal clared, whether the conusor be in possession, or the fine be of a reversion, it shall enure to the old uses, and the conusor shall be in of the old use, and although it passes nothing, yet after five years and nonclaim it will operate as a bar. And in the case of a recovery suffered, the same shall enure to the use of him who suffers it (who is commonly the vouchee) if no uses be declared; but he gains a new estate to him and his heirs general; and although before the recovery he was seised ex parte materna, yet afterwards the estate will descend to his heirs ex parte paterna, as was determined in Martin v. Strachan, 1 Wils. 2, 66. Sed vide that case 2 Stra. 1179. In the case at bar, the ancient use was in the conusor at the time of levying the fine; and it seems to have been long settled before this Resulting case, that a fine without any consideration, or uses thereof declared, use to a shall enure to the ancient use in whomsoever it was at the time of levying the fine; and as it was here in the conusor at that time, the judgment must be for the plaintiff.1 1 SAND. USES (5th ed.) 96–98. As the Statute did not expressly abolish all future limitations of, and estates created by, uses, there was actually no avoiding the execution of uses, limited or occasioned by conveyances made subsequently to the Act. When a feoffment was made without consideration and declaration of the use, what construction was to be adopted? We have seen, that, before the Act, the Chancery, which judged according to the intention of the parties, would have construed the possession to be in the feoffee, and the use in the feoffor. Does the Statute destroy this construction? On the contrary, the case appears to come directly within the meaning of it; the words being, 1 See Roe v. Popham, 1 Doug. 25. |