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s. 15. be sufficiently grounded", the subse

SECT. VII.

quent variation of the uses must be by deed, of declarations and not merely by writing without seal.

When the fine or recovery does not vary in circumstances from the deed leading the uses of it, the use is executed and fixed upon the levying the fine, or suffering the recovery: and no subsequent declaration is admitted to controul the operation of the previous deed or instrument*.

Although the fine or recovery does not altogether correspond in circumstances with the deed or instrument leading the uses of it, if there be no subsequent declaration of the uses, the fine or recovery shall still enure to the uses of the leading deed or instrumenty.

If there be no preceding limitation of the use, the uses of the fine or recovery may be subsequently declared according to the statute of 4 Ann. c. 16. s. 15. by deed; but it is by no means certain, that such subsequent declaration may not be controuled by another

See Mr. Sugden's note, Gilb. Uses, 111.

Shep. T. 520. Salk. 676. Tregame v. Fletcher, 9 Co. 10. b. 11. a. Comb. 429. 1 Atk. 9.

Shep. T. 520. 2 Co. 76. a. Havergill v. Hare, 2 Roll. Ab. 799. 1 Atk. 7. 13 Vin. 306. pl. 2. P. a. 2. and the cases collected in the note.

of uses.

SECT. VII.

averment by deed, although there be no va

Of declarations riance in the fine or recovery 2.

of uses.

When there are

contradictory

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The author of the Touchstone bas observed (519.), "that if the declaration be subsequent, if in the interim between the assurance had, and the declaration of the uses, "the conuzor or recoveree sell, give or charge "the lands to others, this subsequent declara"tion will not subvert the mean estate, charge, or interest."

Thirdly. It sometimes happens, that in the declarations in same instrument there are two declarations of the same instru- the use, differing from each other.

ment.

The rule is, that the first declaration shall prevail; and that the second shall be void. When the use is limited by the habendum of a deed, and there is in the subsequent part of the instrument a covenant to levy a fine of the same land to different uses, if the fine be levied after the seisin, out of which the uses are to arise, is transferred to the grantee, there is no ground to contend, that the use limited after the habendum can be controuled by the declaration of the use of the fine; for the deed, transferring the seisin, from which

2 Second resolution in Tregamev. Fletcher, 2 Salk. 676. Shep. Touch. 521. Vavisor's case, Dyer, 307.b.

• Southcoat v. Manory, Cro. Eliz. 744. J. C. Moor, 680. by the name of Wilmot v. Knowles.

SECT. VIL

of uses.

the use is to arise, is perfected upon the delivery of the deed by the operation of the Of declarations statute of uses; and the subsequent fine, not operating by way of transmutation of possession, but as a confirmation, or extinguishment of right, there is no seisin to serve the use limited upon it. It is a more difficult case, where the fine is levied of a term preceding the execution of the deed; but even in this case, it should seem, that the fine would be considered merely as a further assurance; not disturbing, but by way of confirmation of, the first limitation of the use. The latter point, however, is extremely doubtful.

Fourthly. The general construction upon, The construc

and effect of, the declaration of uses.

tion upon, and effect of, the declaration.

(184.)

words are ne

(1.) A very slight expression is sufficient No formal to declare the uses of a fine or recovery; no cessary. formal set of words being required for that purpose. Therefore, 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; and the uses may

See Southcoat v. Mamory, cited above, and see 22. Vin. 227. pl. (9.) 8. Oliver v. Gyles, Cro. Eliz. 300.

* See 3 P.W. 208. 1 Lord Ray. 290. 12 Mod. 162. A covenant for further assurance (Hob. 275. 13 Vin.

(185.)

be declared by deed indented, or by deed

SECT. VII.
Of declarations poll.

of uses.

Must be certain as to the persons, place, and

estate.

No considera

tion necessary.

Whether it

breaks the de

to the recove

ree, or conuzor in fee.

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(2.) "The declaration of the uses must be

certain, and that especially in three things; "in the persons to whom, in the lands, &c. "of which, and in the estates by which, the

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uses are declared; and if there want cer"tainty 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 communication, and no "complete declaration."

(3.) 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 k

(4.) It has been before observed, that if a scent, when it man, seised on the part of his mother, had declares the use made a feoffment without any consideration or declaration, and the use had thereupon resulted to him in fee, or if he had expressly declared the use to himself and his heirs; in either case the descent would not have been broken, but the lands would have descended

(186.)

305. O. a. pl. 2.), or a con-
dition of re-entry (13 Vin.
309. T. a. pl. 1.), may
amount to a declaration of
the use.

ed.

Shep. Touch. 519. 6th

k See Har. Co. Litt. 123. a. note 8. 1 Ld. Raym, 290.

SECT. VII.

of uses.

to the heirs on the part of the mother1. So if tenant in tail, who takes by descent from Of declarations his maternal ancestor, suffer a recovery, and declare the use to himself in fee, the descent is not broken, and the newly-acquired fee will descend to the heirs ex parte materná ". But here a distinction is taken-if a tenant in tail take by purchase under a settlement, made 'by his ancestor er parte maternâ, and suffer a recovery with a declaration of the use to himself in fee, the estate in fee will descend to his heirs ex parte paterna". But it should seem, that in this case, if the reversion in fee ex parte materna had been in the tenant in tail, a fine by him would have had a different operation; for it is the nature of a fine to let in the reversion °.

VIII. Upon the construction of the statute, four necessary points are to be observed for the execution of an use P:-1st; a person seised to the use; 2dly; a cestuique use in esse; 3dly; a use in esse, scil. in possession, reversion, or remainder; 4thly; an estate or seisin, out of which the use is to arise; for the words of the statute are, that the es tate of such person seised to the use shall be adjudged in cestuique use, &c. It follows,

See ante, 56. 22 Vin. (a), 5 Term Rep. 107. 185. pl. 4, 5. notes. See 5 Term Rep. 108,

In Roe dem. Crow v. Baldwere, 5 Term, 104. "Martin v. Strachan, note

109.

P 1 Co. 126. a.

SECT. VIII. of uses which

are not exe

cuted by the sta

tute.

(187.)

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