The Estate continues till a Use arises. 31. In the case of a covenant to stand seised, the estate continues in the covenantor till a lawful use 1 Rep. 154 a. arises. Thus, if a person makes a feoffinent in fee, to the use of A. for life, remainder to the use of B. for life, remainder to the use of C. in fee; if A. refuses, B. shall take the estate presently. For the feoffor by his feoffment has given all his estate out of him, and all the uses are created out of it, as out of one and the same root; therefore, as long as any of the uses can take effect, the feoffor shall not have the land. In the case of a covenant which raises a use, there the consideration, which is the cause that raises every several use, is several, and all the uses grow and rise out of the estate of the covenantor : therefore, if one refuses, he who is next in remainder shall not take the land presently, but the covenantor shall keep it. A Rent may 32. In consequence of the 4th and 5th sections of Tit. 28. c. 1. the statute of uses, a rent may be created by a cove be created by. § 31. Rivetts v. No Estate is nant to stand seised. 33. A., in consideration of natural love and affection, covenanted to stand seised to the use of himself for life, remainder to B. his son in tail: and to the intent that B. should have a rent issuing out of the lands, during the life of A. Resolved, that B. was well entitled to this rent upon the words of the statute of uses. 34. A bargain and sale, and covenant to stand devested by seised, pass no interest but that which the bargainor this Conveyance, or by a or covenantor can lawfully transfer. For as nothing Bargain and Sale. but a use passes by these conveyances; and as no use can be greater than the estate out of which it is created; where a use is granted, greater than the legal estate out of which it is to issue, it is merely void Tit. 11. c. 3. § 19. and the statute executes the possession to so much only of the use as is lawfully granted. 35. Thus if a tenant for life, with contingent Tit. 16. c. 6. remainders depending on his estate, conveys in fee, Gilb. Uses, by bargain and sale, or covenant to stand seised, in 140. fee; the bargainee or covenantee will only take an estate for life; and the contingent remainders will not be destroyed. Case, 10 Rep. 95. 1 Atk. 2. 36. So if a tenant in tail bargains and sells his Seymour's estate, or covenants to stand seised of it, in fee simple. The bargainee or covenantee will only acquire a base fee, and the issue in tail may enter on the death of the bargainor. Tit. 2. c. 2. § 11. No Uses can on these be declared 37. No uses can be declared on a bargain and sale, or covenant to stand seised, but to the bargainee or covenantee, because these conveyances only pass a conveyances. use, and the legal estate and possession is transferred by the operation of the statute; so that a use declared on them is a use upon a use. Case, Dyer, 38. A widow, in consideration of 400 l., bargained Tyrrell's and sold to her son all her manors, &c., to hold to 155. him and his heirs, to the use of the widow during her life, &c. It was resolved, that the limitation of the use was void; because a use cannot be engendered on a use. 291. 12 Mod. 163. 29 Cha. II. c. 5. § 7. "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 by his last will in writing; or else they shall be utterly void and of none effect." 3. It has been long settled, that the word trust, in this statute, comprehends uses; and Lord Holt says, "We take trusts and uses to be the same, in respect of trusts in their larger extent, and so within the statute." 4. It was not absolutely necessary, under the words of this act, that a declaration of uses should be by deed; for Lord Holt has said, that since the statute of frauds, uses might be declared by writing only, without seal. But there has been another act on this subject, which will be stated hereafter. 5. No technical words are required in a declaration of uses and Lord Holt has said, that it is not even necessary to insert the word use in the declaration of uses of a fine, or recovery; for that any kind of agreement which manifestly shows the intent of the parties will be sufficient. 6. This doctrine is conformable to the law as it stood before the statute of frauds. It having been determined in 2 James, that a will, though revoked, should operate as a declaration of the uses of a feoff ment. 7. In conformity to this doctrine, it is laid down 1 Ld. Raym. by Lord Holt, arguendo, that if A. bargains and sells to B. and his heirs, and the deed is not enrolled, or if a deed of feoffment is not executed by livery, and a fine is levied between the same parties, the deed of bargain and sale, or feoffment, will declare the uses of the fine. be described. 8. In a declaration of the uses of a fine or recovery, How the the lands ought to be described with as much minute- Lands should ness and accuracy as in a feoffment or release. For as lands are described in a fine or recovery in the same manner as in a præcipe quod reddat; that is, only by the number of messuages, cottages, acres of arable, meadow, and pasture, &c.; it is proper to have a more particular description in the declaration of uses; which is the measure that usually guides juries in ascertaining the estates comprised in a fine or recovery. And there are many instances, where the Vide Tit. Court of Common Pleas has directed the description 35 & 36of lands, in fines and recoveries, to be amended, in conformity to the deed of uses. Hence arises an obvious propriety in connecting the description in the fine and recovery with that in the deed. There is also an advantage in stating in the deed the description contained in the fine or recovery. cessary. 9. No consideration is necessary to raise a use on No Consia fine or recovery, although in the case of a bargain deration neand sale, and covenant to stand seised, it has been shown, that a consideration is absolutely necessary. The reason of this difference is thus explained by Mr. Hargrave. In the case of a declaration of uses, the 1 Inst. 1236. estate is passed completely from the grantor, without ". 8. the aid of a court of equity; therefore it is immaterial whether the use declared on the estate is gratuitous or not; it being sufficient that the grantees receive it coupled with a trust or use. But in the case of a bargain and sale, or covenant to stand seised, the transaction rests in covenant or agreement between the covenantor or bargainor, and the cestui que use; and if the covenant or agreement was not founded on the consideration of blood, or a valuable consideration, such as marriage or money, our courts c. 10. § 20. Uses, 207. of equity, which, till the stat. 27 Hen. VIII. had the sole cognizance of uses, would not interpose to compel the performance. In fewer words, Chancery would enforce uses annexed to a perfect gift, however gratuitous they might be; but not those resting on a naked contract; without even so much as the consideration of blood to maintain them. 10. It has been stated, that no use will arise, on a covenant to stand seised, to an illegitimate child. Gilbert says, if a man covenants by indenture, in consideration of love and affection, blood and marriage, of his bastard daughter; though this be not a sufficient consideration to raise a use upon a covenant; yet it is expressive of the intent of the party, and therefore shall serve as a sufficient declaration of a use upon a fine, where there needs no consideration. Deeds to lead 11. Where deeds are executed prior to the levying fines, or suffering recoveries, (for feoffments to uses are now disused,) they are called deeds to lead the uses; and where they are executed subsequent to a fine or recovery, they are then called deeds to declare the uses of them. Uses. Countess of Rutland's Case, 5 Rep. 25. 4 12. With respect to deeds to lead uses, it was resolved in 1 Jac. I.-1°. That although they were but directory, and did not bind the estate or interest of the land, yet if the fine or recovery was pursued, according to the indentures, there could not be any bare averment against the indentures, that after the making of them, and before the assurance, it was agreed that the assurance should be to other uses. But if another agreement was made by writing, or by other matter, previous to the fine or recovery, as high or higher; then the last agreement should stand. 2o. If the form of the indentures was not pursued, as to the quantity of land, or the time within which, |