the other, shall have the use, as they should have the land itself, if no feoffment had been made: as it is holden in 5 E. 4, 7; see 4 & 5 Phil. & Mar., Dyer, 163. So if a man maketh a feoffment unto the use of another in tail, and afterwards to the use of his right heirs, the feoffor hath the reversion of the land in him; for if the donee dieth without issue, the law giveth the use, which was part of the land to him; and so it was resolved, Trinity, 31 Eliz. between Fenwick and Milford in the King's Bench. So in 28 H. 8, Dyer 11, the Lord Rosse's Case: a man seised of one acre by priority, and of another acre by posteriority, and make a feoffment in fee of both to his use: and it was adjudged, that although both pass at one instant, yet the law shall make a priority of the uses, as if it were of the land itself: which proves, that the use is not any new thing, for then there should be no priority in the case. See 13 H. 7, b, by Butler.

So in the case at bar, the use limited to the feoffee and another, is not any new thing, but the pernancy of the old profits of the land, which well may be limited to the feoffee and another jointly: but if the use had been only limited to the feoffee and his heirs, there, because there is not any limitation to another person, nec in presenti, nec in futuro, he shall be in by force of the feoffment.

And it was resolved, that joint-tenants might be seised to an use, although that they come to it at several times: as, if a man maketh a feoffment in fee to the use of himself, and to such a woman, which he shall after marry, for term of their lives, or in tail, or in fee; in this case, if after he marrieth a wife, she shall take jointly with him, although that they take the use at several times, for they derive the use out of the same fountain and freehold, sc. the first feoffment. See 17 El., Dyer, 340. So if a disseisin be had to the use of two, and one of them agreeth at one time, and the other at another time, they shall be joint-tenants; but otherwise it is of estates which pass by the common law: and therefore, if a grant be made by deed to one man for term for life, the remainder to the right heirs of A. and B. in fee, and A. hath issue and dieth, and afterwards B. hath issue and dieth, and then the tenant for life dieth; in that case the heirs of A. and B. are not joint-tenants, nor shall join in a Scire facias to execute the fine, 24 E. 3, Joinder in Action 10, because that although the remainder be limited by one fine, and by joint words, yet because that by the death of A. the remainder as to the moiety, vested in his heir, and by the death of B. the other moiety vested in his heir at several times, they cannot be joint-tenants: but in the case of a use, the husband taketh all the use in the mean time; and when he marrieth, the wife takes it by force of the feoffment and the limitation of the use jointly with him, for there is not any fraction and several vesting by parcels, as in the other case, and such is the difference. See 18 E. 3, 28. And upon the whole matter it was resolved, that because in the principal case the father and son were joint-tenants by the original purchase, that the son having the land by survivor, should not be in ward: and accordingly it was so decreed.

EJECTMENT. Upon a special verdict, for lands in Phelpham, the case was, John Walter was seised of those lands in fee, and made a feoffment of them to Thomas Walter, habendum to him and his heirs of his body, to the use of him and his heirs and assigns for ever. The question was, Whether Thomas Walter had an estate in fee tail only, or in fee determinable upon the estate tail?

First, Whether a use may be limited upon an estate tail at the common law, or at this day after the Statute of 27 Hen. 8, c. 10, of Uses.

Secondly, Whether this limitation of uses to him and his heirs shall not be intended the same uses, being to the feoffee himself, and to the same heirs, as it is in the habendum? Quære, quia non adjudicatur.

But the opinion of the court upon the argument inclined, that he was tenant in tail; and the limitation of the use out of the tail is void as well after the statute as before; for the Statute never intended to execute any use, but that which may be lawfully compelled to be executed before the Statute; but this cannot be of an estate tail; for the Chancery could not compel him at the common law to execute the estate; and so the Statute doth not execute it at this day. Vide 27 Hen. 8, pl. 2; 24 Hen. 8, pl. 62; "Feoffments al Uses," 41. Et adjournatur.1

Co. LIT. 22 b. If a man make a feoffment in fee to the use of himself in tail, and after to the use of the feoffee in fee, the feoffee hath no reversion, but in nature of a remainder, albeit the feoffor have the estate tail executed in him by the Statute, and the feoffee is in by the common law, which is worthy of observation.2

1 s. c. 3 Bulst. 184. See 1 Sand. Uses (5th ed.) 87, 88.

2 This has been taken for an assertion that the feoffee is ultimately in by the common law (see 5 Bac. Ab. 728); but it may bear a very different meaning. The point to which Lord Coke directs the reader's observation is, that though the feoffee is in the first instance in by the common law (as he must be by force of the livery made to him), and the Statute afterwards comes and takes out of him a particular estate which it gives to the feoffor, yet the feoffee has not a reversion, but a remainder. Now it is certain that if the same person who is here described as feoffee (and whom we may call A.) had been seised in fee, and had given an estate tail to B. by bargain and sale, though that estate tail would have received its legal essence from a similar operation of the Statute, yet A. would have had a reversion, and not a remainder. It is therefore necessary to account for the difference; and this, it is submitted, cannot be better effected than by the interpretation, that though A. is in the first place in of

ERROR of a judgment in Flintshire. The error was assigned in point of law, viz.: That judgment was given there upon a special verdict for the plaintiff, where it ought to have been for the defendant. The case was, land was given to husband and wife, habendum to husband and wife to the use of them and the heirs of their bodies. The question there was, Whether it were an estate for life only, or an estate tail? And it was adjudged to be an estate tail.

Littleton, Recorder of London, now argued for the plaintiff in the writ of error, and Calthrop for the defendant.

And all the Court, absente RICHARDSON, held, that the judgment ought to be affirmed; for they conceived, that this limitation in the habendum, "to the use of the grantees and the heirs of their bodies," is as a limitation of the land itself, being all to one person, and is as if it had been said, "habendum to them and to the heirs of their bodies;" and not like to the case 2 & 3 Eliz., Dyer, 186; for true it is, when the estate is limited to one or two, to the use of others and their heirs, the first estate is not enlarged by this implication, and the use cannot pass a greater estate. But here when the grant and habendum convey the estate, and the limitation of the use is to the same person, that shows the intent of the parties, and is a good limitation of the estate; for it is not an use divided from the estate, as where it is limited to a stranger, but the use and estate go together; wherefore it is all one as if the limitation had been to them and the heirs of their bodies." And JONES said, that he knew many conveyances had been made in this manner, and twice brought in question, and adjudged to be an estate tail. Whereupon judgment was affirmed.

the whole fee simple by the common law, he is immediately afterwards in of a remainder by the Statute. And this interpretation agrees with the language of the case in Dyer, 362 b, cited by Lord Coke in the margin, where the objection suggested is not that the feoffee is in by the common law,' but that the fee simple first passed to him.'" Burt. Real Prop. (6th ed.) § 160, note.

DOE d. LLOYD v. PASSINGHAM.

KING'S BENCH. 1827.

[Reported 6 B. & C. 305.]

EJECTMENT for lands in the county of Merioneth. Plea, the general issue. At the trial before Burrough, J., at the last summer assizes for Salop, it appeared that the lessor of the plaintiff claimed as devisee in tail under the will of Catherine Lloyd, who was co-heiress, with her sister Mary, of Giwn Lloyd, who died in 1774. In 1746, by indenture made between himself, G. Lloyd, of the first part, Sarah Hill of the second part, Sir Rowland Hill and John Wynne of the third part, and Sir Watkin Williams Wynne and Edward Lloyd of the fourth part; in consideration of an intended marriage with the said Sarah Hill, and of a sum of £8,000, being the marriage portion of the said Sarah Hill, paid or secured to be paid to him Giwn Lloyd, he, Giwn Lloyd, did grant, release, and confirm unto the said Sir Watkin Williams Wynne and Edward Lloyd in their actual possession then being, by virtue of an indenture of bargain and sale, &c., and to their heirs and assigns, certain premises therein particularly described, and, amongst others, the premises in question; to have and to hold the said premises with their appurtenances, unto the said Sir Watkin Williams Wynne and Edward Lloyd, their heirs and assigns; to the only proper use and behoof of them the said Sir Watkin Williams Wynne and Edward Lloyd, their heirs and assigns for ever, upon trust, nevertheless, and subject to the several uses, intents, and purposes thereinafter mentioned, that is to say, to the use of the said Giwn Lloyd and his heirs until the said intended marriage should take effect, and from and after the solemnization of the said intended marriage, then to the use and behoof of Giwn Lloyd and Sarah his intended wife, and their assigns, for and during the term of their natural lives, and the longer liver of them, as and for her jointure and in lieu and full satisfaction of dower; and from and after the decease of such survivor to the use of Sir Rowland Hill and John Wynne, their executors, administrators, and assigns, for the term of one thousand years, to and for the several intents and purposes thereinafter mentioned; and from and after the expiration or other sooner determination of that estate, to the use and behoof of the first son of the body of the said Giwn Lloyd on the body of the said Sarah Hill, his intended wife, lawfully to be begotten, and the heirs male of the body of such first son lawfully issuing; and for default of such issue, to the use and behoof of the second son in like manner, and then to the daughters; and for default of such issue, to the use and behoof of the said Giwn Lloyd, his heirs and assigns for And it was thereby declared and agreed by and between all and

ever.

every the said parties to the said indenture, that the term of one thousand years thereinbefore limited to Sir Rowland Hill and John Wynne, was upon trust that they did and should immediately after the decease of Giwn Lloyd, by sale or mortgage of the whole or any part thereof, raise the sum of £3,000 to be paid and applied in manner thereinafter mentioned. And it was thereby declared and agreed by and between the parties to the said indenture that a sum of £4,000 of the said sum of £8,000 should immediately after the solemnization of the said intended marriage be paid into the hands of them the said Sir Rowland Hill and John Wynne, upon trust that the same should be paid, laid out, and applied by them with all convenient speed in the purchase of freehold lands, tenements, or hereditaments in fee simple, in the county of Merioneth aforesaid or elsewhere in the principality of Wales, or in that part of Great Britain called England, with the approbation of them the said Giwn Lloyd and Sarah Hill, his intended wife, or the survivor of them, testified by any deed or writing under the hands and seals of them the said Giwn Lloyd and Sarah Hill, and the survivor of them, duly executed in the presence of two or more credible witnesses; and that the said lands, tenements, and hereditaments, when so purchased, and every part and parcel thereof, with their appurtenances, should be conveyed to them the said Sir Watkin Williams Wynne and Edward Lloyd, and their heirs, and to the survivor of them and his heirs, to and for the use and behoof of the several persons, and for such estate and estates as the premises therein before mentioned, and thereby granted and released by the said Giwn Lloyd, were conveyed, settled, limited, and appointed. And it was thereby also further declared and agreed that in case there should be no issue of the said intended marriage, and that the said Sarah Hill should be minded by her last will and testament to give or devise any sum not exceeding £4,000, or the estate thereby intended to be purchased therewith, or any part thereof as aforesaid, to any person or persons whatsoever, it should be lawful to and for her the said Sarah Hill, notwithstanding her coverture, to give and devise the same, or any part thereof, to such person or persons, and to and for such estate and estates, and such uses, intents, and purposes, as she should limit, direct and appoint; and in such case they the said Sir Watkin Williams Wynne and Edward Lloyd should stand seised of all and every the lands, tenements, and hereditaments so to be purchased as aforesaid, to them and their heirs, to and for such uses, intents, and purposes, as she the said Sarah Hill should, by such her last will, limit, direct, and appoint; and then and from thenceforth all and every the uses and limitations to the said Giwn Lloyd and his heirs, of and concerning the said lands, tenements, and hereditaments to be purchased as aforesaid, should cease, determine, and be absolutely void, to all intents and purposes whatsoever.

Giwn Lloyd died in 1774, and Sarah his wife in 1782, intestate, and without having had any issue. Catherine Lloyd, the testatrix, continued in possession of the estate from the death of Sarah Lloyd until the time