Countess of § 2. The deeds by which the ufes of fines and recoveries are declared, (for feoffments to uses are difcontinued,) derive their effect from the ftatute of uses, and are called declarations of uses. Where they are executed previous to the levying a fine or fuffering a recovery, they are called deeds to lead the ufes. But if executed fubfequent to a fine or recovery, they are then called deeds to declare the ufes of them. § 3. With refpect to deeds executed prior to the levying a fine or fuffering a recovery, it was refolved in 2 Ja. 1. 1ft, That although they were but directory, and did not bind the estate or interest of the land, yet if the fine, recovery, or other affurance was purfued according to the indentures, there could not be any bare averment against the indentures taken in such case, that after the making of the indentures, and before the affurance, by mutual agreement of the parties, it was concluded that the affurance fhould be to other ufes. But if another agreement or limitation of uses was made by writing, or by other matter, previous to the fine or recovery, as high or higher, then the last agreement should stand. 2d, That if the form of the indentures was not purfued, as to the quantity of land, or the time within which, &c. an averment might be made, that the fine or recovery was to another use or interest. 3d, That although the indentures were not purfued in circumstances of time, quantity, person, &c. yet, if no other new mean agreement could be proved, the affurance affurance fhould be to the ufes contained in the indentures. f. 16. Baffet, § 4. With refpe&t to the deeds executed subsequent to the levying a fine or fuffering a recovery, it was formerly doubted whether they would operate fo as to direct the uses of fuch prior fine or recovery; because where a fine was levied or a recovery fuffered, without confideration, the use of the land immediately Tit. 11. c. 4. refulted back to the original owner; and when the ufe was once vested, it was doubted whether it could afterwards be devested, by any fubfequent declaration or agreement. But it was refolved in 3 & 4 Philip Arthur v. & Mary, that a deed executed four years after a recovery had been fuffered, was fufficient to declare the uses of fuch precedent recovery. And in a fubsequent cafe, 28 Eliz. it was unanimously refolved, that an indenture, fubfequent, was fufficient to direct and declare the uses of a precedent recovery: and the words of the deed being, that the intent and meaning of the parties at the time of the faid recovery was, that the recoverors should stand seised to the uses fet forth in the indenture, and to no other ufe, intent, or purpose, no averment could be admitted to prove that no fuch ufes had been declared, at the time when the recovery was fuffered; and the fubfequent deed proved that there was a prefent, certain, and compleat agreement, and declaration of the ufes, at the time of the recovery, for fo the indenture exprefsly purported. § 5. A deed Dowman's 9 Rep. 7 b. Vavifor's Must be in Writing. § 5. A deed executed after the suffering a recovery may be controlled by a fubfequent deed. § 6. Thus, where a feme fole fuffered a recovery of her estate, and by an indenture fubfequent, made between her and A. B., whom fhe afterwards married, agreed, that after the folemnization of the marriage, the recoverors fhould ftand feised to the use of the husband and wife and their heirs. The marriage took effect, and afterwards the recoverors conveyed the eftate to the husband and wife and their heirs. Some time after the husband and wife, by indenture made between them, and the heir of the wife, on the part of her father, reciting, that as the land came to her from her father, and as he had no iffue, notwithstanding the indenture and conveyance aforefaid, the true intent was only that the iffue of the body of the wife should inherit the land, and for default thereof her right heirs; It was agreed that the hufband and wife, in future, fhould ftand feised thereof to the use of themselves in special tail; remainder to the right heirs of the wife. It was refolved that the ufes were altered by the second deed. § 7. Thus ftood the old law respecting declarations of uses. But, it was enacted by the ftatute of frauds, 29 Ch. 2. c. 3. f. 7. "That all declarations or crea"tions of trufts or confidences, of any lands, tene"ments, or hereditaments, fhall be manifefted and "proved by fome writing, figned by the party who is by law enabled to declare such truft, or by his last will in writing, or else they shall be utterly void, "and of none effect." § 8. Upon the construction of this ftatute, Lord Ch. Juft. Holt appears to have been of opinion, that 7 Mod. 76. uses might be declared by writing only, without feal. By the statute 4 Ann. c. 16. f. 15. reciting, that it had been doubted, whether, fince the ftatute of frauds, the declarations or creations of ufes, trufts, or confidences, of any fines or common recoveries, manifefted by deed, made after the levying or fuffering of fuch fines or recoveries, were good and effectual in law; it is thereby declared-" That all "declarations or creations of any ufes, trufts, or "or confidences, of any fines or common recoveries, "of any lands, &c. manifefted and proved, or which "thereafter should be manifested and proved, by any "deed then made, or thereafter to be made, by the party who was by law enabled to declare fuch uses or trusts, after the levying or fuffering of any fuch "fines or recoveries, were and fhould be as good "and effectual in the law, as if the faid act had not "been made. § 9. It is obfervable that in this ftatute, the word deed is used instead of writing, from whence it mav be contended that a deed to which a feal is effential is now required in all cafes, to declare uses; but this statute does not repeal the clause alluded to in the statute of frauds, it is only explanatory of it, and if VOL. IV. P taken Exception, Vide Tit. 11. ch. 4. 1. 38. No Technical Words necel fary taken literally, can only be extended to declarations of ufes made fubfequent to a fine or recovery, and not to those made prior. § 10. The claufe in the ftatute of frauds, which requires that delarations of ufes, truft, and confidences, should be in writing, extends in the cafe of fines, to third peifons only, and not to the cognizors and cognizees of the fine. For the refulting use to the cognizors may be rebutted in favour of the cognizees, by parol evidence, fhewing fuch to have been the intention of the parties. The cafes on this subject have been already stated. § 11. No technical words are necessary in a declaration of ufes, and Lord Ch. Juft. Holt has faid, that Ld. Raym. it is not abfolutely neceffary to infert the word use, in the declaration of ufes of a fine; for any kind of agreement which manifeftly fhews the intent of the parties, will be fufficient. 200. P. Wms. 209. 1 Ld. Raym. 291. 12 Mod. 163. How the Lands fhould § 12. It is laid down by Lord Holt, arguendo, that if A. bargains and fells to B. and his heir, and the deed is not inrolled; or if a deed of feoffinent is not executed by livery; if a fine be levied between the fame parties, the deed of bargain and fale, or feoffment, will declare the ufes of the fine. 13. In a declaration of the ufes of a fine or recobe defcribed. very, the lands ought to be defcribed with as much minuteness as in a feoffment or grant: for as lands are described in a fine or recovery in the fame manner as |