5 Rep. 25. whether the lease and release of the 9th and 10th of September 1724, will amount to a good declaration of the uses of the recovery, notwithstanding the subsequent deed of April 1725 ? I am strongly inclined to think that the lease and release of 1724, will amount to a good declaration of the uses of the recovery. This question depends on the construction of law, and the authority of cases upon the declaration of uses. It is true, where there is an agreement to suffer a recovery, and uses are declared, if the recovery is afterwards suffered, though it varies in point of time from the recovery covenanted to be suffered; yet if there be no subsequent declaration of uses, the recovery will enure to the uses so declared; and before the statute of frauds, if the deed declaring the uses had not been pursued, a parol declaration of the uses would have been admitted; but if there was a deed declaring the uses, and the recovery was suffered accordingly, that would, before the statute, have ex'cluded a parol declaration of new uses. But even now there may be a subsequent declaration of other uses, but that declaration must be in writing, and such a new declaration of uses depends upon the agreement of the parties: therefore, though it was said at the bar, that the declaration of uses is in the power of the tenant in tail, and that he may declare new uses, I take that not to be law; for such subsequent declaration of uses must be by all the parties concerned in interest. And in the case of the Countess of Rutland, it is not laid down that the tenant in tail may declare new uses, but it is said, whilst it is directory only, new uses may be declared; and the meaning of that is, that as the new uses must arise out of the agreement of the parties, the parties may change the uses, but that must be done by the mutual consent of all the parties concerned in interest; and in that case it was a mutual agreement of all the parties. But in the present case, the second agreement not being between all the parties concerned in interest, ought not to controul the first declaration, and especially as the recovery was suffered within the time prescribed by the first deed, and between the same demandant and tenant. clare Uses. 18. With respect to deeds executed subsequent Deeds to deto a fine or recovery, it was formerly doubted whether they could operate so as to direct the uses of such prior fine or recovery; because where a fine was levied, or a recovery suffered, without any consideration, the use immediately resulted; and when the Tit. 11. c. 4. use was once vested, it was doubted whether it could afterwards be divested, by any subsequent declaration. But it was resolved in 3 & 4 Phil. & Mary, that a Basset's deed executed four years after a recovery, was suffi- Case, Dyer, 136. cient to declare the uses of it. And in a subsequent case, 28 Eliz., it was resolved by the Court of C. P., Downman's Case, 9 Rep. that an indenture subsequent was sufficient to direct and declare the uses of a precedent recovery. 19. A deed of this kind must however refer to the recovery; for if there be a variance between the deed and the recovery, the deed will not operate as a declaration of the uses of such recovery. 7 b. v. worth, 799. 20. Thus where a person suffered a recovery, Oct. Whetstone Mich. 3 Edw. VI., and an indenture was made on the . Went14th November following, in which it was expressed 2 Roll. Ab. that all recoveries thereafter to be suffered between the parties, should be to the uses contained in that indenture it was held that the recovery suffered before, should not be to the use of that indenture, though all Michaelmas term was but one day in law; Staplehill v. Bully, 224. for the word thereafter, excluded all recoveries Prec. in Cha. before suffered, without an averment of the intent. 21. A deed to declare the uses of a recovery may be controlled by a subsequent one. Vavisor's 22. A feme sole, before the statute of uses, suffered a recovery, and intending to marry A. B., she, before the marriage, executed an indenture declaring the use of the recovery to herself and A. B. and their heirs. The recoverors having notice of the indenture and marriage, executed an estate to the husband and wife, and their heirs. Afterwards the husband and wife, by other indentures, declared that the first indentures were mistaken, for that the use should have been to the heirs of their two bodies, remainder to the heirs of the wife; and they covenanted and agreed to stand seised to the use of themselves in tail, and after to the right heirs of the wife. It was held that the first 'indenture was corrected by the second; and the first use sufficiently altered, without estate executed. 23. By the statute 4 Ann. c. 16. § 15. reciting that it had been doubted whether, since the statute of frauds, the declarations or creations of uses, trusts, or confidences of any fines or recoveries, manifested by deed, made after the levying or suffering of such fines or recoveries, were good and effectual in law; it is thereby declared, "that all declarations or creations of any uses, trusts, or confidences of any fines or common recoveries of any lands, &c., manifested and proved by any deed then made or thereafter to be made, by the party who was by law enabled to declare such uses or trusts, after the levying or suffering any such fines or recoveries; were and should be as good and effectual in the law, as if the said act had not been made. 24. A. and B. his wife levied a fine, and four years Bushell v. Burland, Holt's R. 733. after they, by deed, declared the use of it, in which 11 Mod.196. were the following words:" All and every fine or fines levied or to be levied shall be to the uses of the deed." The Court held that this was a good declaration of the use of the fine; the jury having found that the fine was levied to the uses therein declared; and that, notwithstanding the statute of frauds, a subsequent deed was as good as it was before that statute was made. It is evident that this determina tion was founded on the statute 4 Ann. ; though it is not mentioned." Sugd. note to Gilb. Uses, 115. 25. It is observable that in the statute 4 Ann. the word deed only is used, and the word writing omitted; from which it has been contended that a deed is now 1dem 112. necessary in all cases to declare the uses of a fine or recovery: but this statute does not repeal the 7th section of the statute of frauds, being only explanatory of it; and if taken literally can only be extended to declarations of uses made subsequent to a fine or recovery, and not to those made before. 26. It is now the usual practice, where a fine is intended to be levied to uses, to execute a deed previous to the fine in which the intended cognizor covenants to levy a fine, and a declaration is inserted in the deed, of the uses to which the fine, when levied, shall enure. Where a recovery is intended to be suffered, a deed is previously executed to make a tenant to the præcipe, in which is contained an agreement to suffer a recovery, and a declaration of the uses of it. 27. With respect to the persons who are capable Who may of declaring uses; not only all those to whom the law declare Uses. gives a disposing power are capable of declaring uses; but also some who are incapacitated from conveying Infants. Beckwith's 2 Rep. 56. 10 Rep. 42 b. their estates by any of the common modes of as surance. 28. If an infant levies a fine, and declares the use of it, such declaration shall bind him, as long as the fine remains in force: for inasmuch as he was admitted Tit. 35. c. 5. by the judges to levy a fine, the law will permit him to declare the use of it, and such declaration will be valid as long as the fine. 29. But an agreement by an infant to levy a fine and suffer a recovery, when he came of age, to certain uses, will not operate as a declaration of the uses of such fine or recovery. Tit. 11. c. 4. 30. Thus in the case of Nightingale v. Ferrers, a § 60. Frost v. Wolverston, 1 Stra. 94. Married Women, Tit. 35 36. Bury v. 2 Roll. Ab. 798. 5 Rep. 57 a. Haverington's Case, Ow. 6. question arose whether the agreement entered into by Lord Ferrers's son, when an infant, amounted to a declaration of the uses of the fine and recovery; and it was declared by Sir J. Jekyll that it did not. 31. An infant covenanted to levy a fine by a particular time, to certain uses. Before the time he attained his full age, and levied the fine, and by another deed executed after he attained his full age, he declared it to be to other uses. The Court of C. P. held that the last deed was that which should declare the uses of the fine. 32. As a married woman is allowed to join with her husband in levying a fine, and suffering a recovery, she is also allowed to join with him in declaring the uses of them; and although the wife be an infant, yet her declaration of the uses of a fine, if she is allowed to levy one, will bind her. If a husband alone declares the use of a fine, levied by him and his wife, of the wife's estate, it will bind the wife, unless her dissent appears; when she joined her husband in the fine, it must be for |