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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.
CURIA : In the case of a fine come ceo, &c. where no uses are declared, 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 case, that a fine without any consideration, or uses thereof declared, 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 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.
that where any person, &c. stands seised to the use of another, by reason of any feoffment, &c. or by any manner of means whatsoever, then, &c. In this case, the feoffee stands seised to the use of another, viz. the feoffor, by an admitted construction before the Act. The Act certainly did not intend to alter the manner of raising uses ; nor did it mean to make any thing pass by a conveyance, which did not pass before ; that is to say, it did not mean, that the land and use should now pass in a case, in which the land only passed before the Statute. Vide 2 Raym. 800 ; Co. Lit. 22 b; Jenk. Cent. 253. It may therefore be considered as a general rule, that if a feoffment be made, a fine levied, or recovery suffered without consideration and declaration of the use, the use will result to the feoffor, &c. and be executed in him by the Statute. Armstrong v. Wolsey, 2 Wils. 19; Doug. 26; Beckwith's Case, 2 Co. 56, 58 b; Dyer, 146 b; 1 Roll. Ab. 781 ; Read v. Errington, Cro. Eliz. 321 ; 22 Vin. 214, pl. 1, and notes.
Indeed it is said, Shortridge v. Lamplugh, 2 Salk. 678; 7 Mod. 71 ; 1 Stra. 107, that if a feoffment be pleaded, the use need not be averred to the feoffee ; because if nothing appear to the contrary, the use must be intended to be in him ; and that such was the form of pleading before the Statute. If this be the course of pleading, it may be asked, What utility can arise from the doctrine of resulting uses? To which it may be answered, that although the rules of pleading do not require an averment of the use in favor of the feoffee, yet it may be averred to be in the feoffor; and that the want of a consideration and declaration of the use is a sufficient circumstance to prove, that it was intended for him."
I must here observe, that uses generally result according to the estate and interest of the person or persons making the conveyance; Roe v. Popham, Doug. 24, and 22 Vin. 215, pl. 2, and notes, and pl. 6, 7; and he or they, in that case, claim under the old use. However, when a tenant in tail suffers a recovery without consideration or declaration of the use, the use (notwithstanding the aspect of some of the cases ; see Argol v. Cheney, Latch. 82; Waker v. Snow, Palm. 359) will result to the recoveree in fee: 9 Co. 8 b; Gilb. Uses, 61; Nightingale v. Ferrers, 3 P. W. 206 ; for as the recoveror or demandant acquires a seisin in fee, the use, iť it result at all, must result according to the extent of that seisin ; the words of the Act being, that the estate, title, right, and
1 Anglesea v. Altham, Holt Rep. 737 ; 1 Stra. 107. In the margin of Salkeld's Reports, which belonged to the late Serjeant Hill, opposite to the case of Shortridge v. Lamplugh, is the following MS. note, which, although not in the handwriting of, is evidently dictated by, the learned Serjeant.
"Contra, Vin. Uses (Y. a.) pl. 1, and the notes, pl. 24 ; but most of the cases there cited before the Statute ; and, therefore, Q. if since the Statute it is not necessary, in pleading a feoffment or release, for the feoffor or releasor to make an averment, that it was to his use? and it seems, that the want of a consideration would be evidence of the truth of such averment, if traversed ; but if the deed purports a valuable consideration, the feoffor or releasor cannot be admitted to take such averment. Dyer, 169, pl. 21, S. P. 9; Co. 11 b, accordingly as to a recovery, and Salk. 676, pl. 2, as to a fine and feoffment."
possession of the person seised to the use shall be transferred to the cestui que use; and in the very distinguished argument of the Chief Justice Lee, in delivering the opinion of the court in the case of Martin v. Strahan, 5 Term Rep. 107, 110, in note, is the following passage : " It is the use of the fee-simple that passes to the recoveror from tenan! in tail, and which results to him (i. e. tenant in tail) and his heirs, if no use is declared.”
2 HAYES Conv. (5th ed.) 464, 465. The limitations in a deed operating under the Statute of Uses must, in their creation, be either
1. Vested, - conferring, therefore, legal estates (as, where the land is limited to A. for life, remainder to B. for life or in tail, remainder to C. in fee, or to A. for life, remainder to B. for life or in tail), in which case the whole use of the fee-simple in the first example), or such portion of the use as the limitations embrace (in the second example), is immediately drawn out of the grantor, covenantor, &c., and executed in the cestui que use by the statute, and the undisposed of residue of the use in the second example), results to, or remains in, the grantor, &c., as a reversion espectant on the particular estates created by the limitations ; — or,
2. Not vested, and not, therefore, conferring legal estates (as to the heirs of the body of B., a person now living, or to A. for life, if he shall return from Rome, remainder to the heirs of the body of B., a person now living, or from and after Christmas-day next to A. in fee), in which case the whole use of the fee-simple results to, or remains in, the grantor, &c., subject to be drawn out of him, to the extent of the estates to be conferred by the limitations, on their becoming vested, either as remainders, if eventually capable of effect as such (for, in the second example, the limitation to the heirs of the body of B. would, if A. should return from Rome in B.'s lifetime, be good as a contingent remainder), or if not so capable, and if confined within the bounds prescribed by the rule against perpetuities, then as springing or future uses ; - or,
3. Partly vested, and partly not vested (as, to A. for life, remainder to the heirs of the body of B., a person now living, remainder to C. in fee ; or to A. for life, and, at the end of one year or one day after his death, to the heirs of the body of B., a person now living), in which case such portion of the use as the vested limitations embrace, is immediately drawn out of the grantor, &c., and executed in the cestuis que use by the statute ; and the undisposed of residue of the use results to, or remains in, the grantor, &c., as a reversion espectant on the particular estates created by such vested limitations, subject to be drawn out of him, to the extent of the estates to be conferred by the remaining limitations, on their becoming vested, either as remainders, or as springing or future uses.
The foregoing propositions, of course, assume that, in deeds taking effect by transmutation of possession, there is nothing to rebut the supposed resulting use, and fix it in the feoffees, releasees, &c.; and it for,
should be observed that the legal use will not result to the grantor, releasor, &c., where it would defeat the intent of the conveyance by merging a particular estate expressly limited to the grantor, releasor, &c.
Assuming these positions to be accurate, it would seem to flow from them, as a necessary consequence, that by no possibility can a particular estate of freehold, in any case, result to, or remain in, the grantor, covenantor, &c. ;
1. Where no limitation is vested, less than the whole use of the feesimple cannot result or remain ; — and,
2. Where all or some of the limitations are vested, and absorb the whole use of the fee-simple, nothing can result or remain ; — and,
3. Where all or some of the limitations are vested, but do not absorb the whole use of the fee-simple, the residue of the use (being the ultimate remnant of the ancient use) will result or remain, as a reversion expectant on such portion of the use as passes in the particular vested estates.
On principle, it is conceived that the grantor, &c., cannot be in of a particular estate of freehold, as part of his old use, whereof he hath not disposed, because if he make a partial disposition of the use, it must be in some particular vested estate or estates; and, such particular estate or estates being deducted, the residue will be the use of the ulterior feesimple.
LEAKE, Digest LAND LAW, 107, 108. Upon the same principle, if upon a feoffment or conveyance in fee the use be declared for a particular estate only, and no consideration appear to carry the residue, so much of the use as is undisposed of by the declaration remains in the grantor as a resulting use. Thus, if the use be declared to the grantee or another for life, or in tail, or for years only, the reversion of the use being undisposed of results to the grantor. And a consideration paid in such case will be presumptively attributed to the estate limited, and will afford no inference as to the use undisposed of."
But if the use be declared to the grantor for an estate for life or years, the reversion, though not expressly disposed of, does not result to him but vests in the grantee; for by the opposite construction the particular estate would merge in the reversion and the grantor would resume the entire fee, against the express terms of the declaration of uses, which restricts his interest to the particular estate. If, however, the use be declared to the grantor for an estate tail, he may also take the reversion by resulting use; for an estate tail and the reversion in fee may subsist together in the same person."
1 “But it is said, that if a man be seised of land in fee, and grapt a rent issuing out of the land to a stranger, without any consideration, &c., the grantee shall be seised of this rent to his own use ; for the law cannot intend such a grant to be made to the use of the grantor." Perk. § 531.
? But see Pibus v. Mitford, 1 Vent. 372 ; Fearne, C. R. 42.
If the feoffment or conveyance of the legal possession be made for a particular estate only, as a gift in tail, or a lease for life or for years, the tenure alone thereby created, with its attendant services and obligations, supplied a consideration sufficient to prevent the use from resulting, and to carry it to the donee or lessee; and this doctrine applies at the present day. But an express use declared in favor of another would rebut the use implied from the tenure in such cases.” The Statute Quia emptores prevented the creation of any tenure which might carry the use upon a conveyance of the fee simple.3
USES RAISED WITHOUT TRANSMUTATION OF POSSESSION.
St. 27 HEN. VIII., c. 16. ST. OF ENROLMENTS (1535). Be it enacted by the authority of this present Parliament, That from the last day of July, which shall be in the year of our Lord God 1536, no manors, lands, tenements or other hereditaments, shall pass, alter or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing indented sealed, and inrolled in one of the King's courts of record at Westminster, (2) or else within the same county or counties where the same manors, laads or tenements, so bargained and sold, lie or be, before the Custos Rotulorum and two justices of the peace, and the clerk of the peace of the same county or counties, or two of them at the least, whereof the clerk of the peace to be one ; (3) and the same enrolment to be had and made within six months next after the date of the same writings indented ; (4) the same Custos Rotulorum, or justices of the peace and clerk, taking for the enrolment of every such writing indented before them, where the land comprised in the same writing exceeds not the yearly value of forty shillings, ii. s. that is to say, xij. d. to the justices, and
1 Bacon on Uses, Rowe's ed. notes, p. 223; 1 Sanders on Uses, 103; see Adams v. Sarage, 2 Salk. 679; L. Raym. 854. 'Generally speaking, when two estates unite in the same person in the same right, the smaller one is merged in the other, except in the case of an estate tail and a reversion in fee, which may exist together: in such case by the operation of the Statute De donis, the estate tail is kept alive, not merged by the reversion in fee." Per KENYON, C. J., 5 T. R. 110, in Roe v. Baldwere.
2 Perkins, $$ 534-537 ; 2 Leon. 16, Brent's Case ; Dyer, 312 a. The relation of landlord and tenant is a consideration in law, hence in a contract for a lease no other consideration is necessary. King's Leaseholds, L. R. 16 Eq. 521. [See particularly 1 Sand. Uses (5th ed.) 86–88. – ED.)
3 Perkins, S$ 528, 529.