SECT. VI. the statute of uses upon the laws of remitter, fee to the use of his issue being within age, and to his heirs, and then die; and the right of the effect of of the estate tail descend to the issue, being within age; the issue shall not be remitted; for the issue has the use in fee by the feoffment, and then the statute executes it in such manner and plight, as it was first limited. But in this case, if the issue waive the possession, and bring a formedon in the descender, and recover against the feoffees, he shall be remitted. It was therefore said, that if an infant, or a woman, having right to lands discontinued, whereon entry was not lawful, came to such lands by way of use raised out of the estate, the first taker should not be remitted f. So in Amy Townsend's case 5, where tenant in tail made a feoffment in fee to the use of his wife for life; remainder to his son and heir apparent in fee. The feoffor and his wife died; and it was determined, that the heir in tail was not remitted. However, though the first taker be not, as in the case of the issue put by Coke, yet it seems, that the issue of that issue, or the one in remainder after the first taker, shall be remitted b. • Co. Litt. 348. b. ! Hob.255. Dyer, 54. a. b. Hob. 255. Plowd. 111. h Co. Litt. 348. b. (168.) the statute of uses upon the (169.) SECT. VI. Amy Townsend's case was not affected by Of the effect of the statute S2 Hen. 8. That statute directs, that the fine or feoffment of the husband of laws of remitter. the wife's land shall not operate as a discontinuance and, therefore, as to the wife and those claiming under her, it has considerably lessened the effect of the statute of uses upon remitters. The case of Duncombe v. Wingfield was in substance thus: A. and B. his wife, being seised in fee in right of B., levied a fine with proclamations to the use of themselves, and the heirs of their two bodies begotten, remainder to J. S. for life, remainder to W. in tail, remainder to B. (the wife) in fee; afterwards A. alone levied another fine with proclamations to the use of himself and wife in special tail as before, remainder to himself in tail, remainder to himself and E. M. in fee. B. died without issue, and then A. died. Upon this state of the case, three material points were settled. The first point was, that where husband and wife are tenants' in special tail, and the husband discontinues by fine or feoffment, and takes back an estate in special tail to himself and wife, the wife is ipso facto remitted, and of course the husband; though it is true the husband is so far bound by his own act, that he cannot claim it in his own person. That in Amy Townsend's case the right of the wife was Hob. 254. Vide 8 Co. 71. b. Dyer, 191. b. SECT. VI. uses upon the laws of remitter. (170.) not within the saving of the statute of uses, and of course she was not remitted against of the effect of the express words of that statute: but that the the statute of 32d Hen. 8. had changed the reason of that case; so that now, the use being raised to the wife out of the estate created by the fine, she is not in of an estate discontinued, but of an estate whereupon she might enter after her husband's death; and that a right of entry was sufficient to support her remitter, without an actual entry. That it was true the fine of the husband alone finally and totally barred the issues in tail, and therefore differed from a feoffment at the common law; yet the entail, which is barred as to the issue, remained, notwithstanding the fine, to the wife in right, as to herself, and to all estates and remainders depending upon it, and to all the consequences of benefit to herself, and to others by her, as long as she lived, as amply and beneficially, as if the fine had not been. levied.-2d Point. As the husband and wife were both remitted to the first estate tail, of consequence J. S. and those in remainder expectant on that tail, were also remitted. that upon the death of the wife, the remainders were dislodged, and turned into rights, as they were by the fine, and would have been, if the wife had not been remitted.-As to the 3d point, it was held, that after the death of the wife the remitter ceased, and the land returned again into the estate passed by the se But SECT. VI. the statute of uses upon the laws of remitter. (171.) cond fine; which estate continued during the Of the effect of life of the husband, and would continue as long as there was issue, if there had been any; for till then, those in remainder had no title to demand the land: but after the death of the husband and wife without issue, the entry of J. S. was lawful. In this case lord Hobart said, that if after the death of the wife the husband had properly suffered a recovery, he would have barred all the remainders depending upon any of the estates. He also held in another place, in the same argument, that if the wife had survived the husband, and had suffered a recovery, it would have barred the remainder depending upon the first estate tail; but so long as there was issue living between them, the premises would go according to the estate passed by the second fine. It is agreed, that if, in the above case, the husband had made a feoffment, instead of levying a fine, it would not have barred, but only have discontinued, the right of the issuek. Therefore, as the wife by her entry would have been remitted, so she would have purged the discontinuance, and restored the right of the issue, by restoring the discontinued estate tail. If too a tenant in tail make a feoffment to the use of himself in fee, or to the use of 1 Lev. 49. 1 Sid. 63. himself for life, remainder to B. for years, and SECT. VI. does not dispose of the reversion; in either of the effect of case, the issue, it seems, is remitted, though the tenant in tail himself is not1. the statute of uses upon the laws of remitter. (172.) SECT. VII. Of declarations VII. I have before observed, that uses in their commencement were of a secret nature, depending merely upon a parol agreement or of uses. declaration between the feoffee and cestuique use. But in process of time it was found necessary to make some certain declaration of the use, indicative of the intention of the parties and this declaration of the use must now by the statute 29 Car 2. c. 3. be in writing. 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 covenantee. But upon such conveyances as operate by way of transmutation of possession, the use may be declared by a deed or writing distinct from the conveyance, 11 Roll. Rep. 260. Moor, 846. pl. 1143. B. N. C. 215. 8 Co. 72. a. Lane, 93 to 96. m See Holt's Rep. 736. By the 7th section of the above act it is enacted," that "from and after the 24th "day of June (1677), 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." (173.) |