as in a præcipe quod reddat, that is, only by the number of meffuages, cottages, acres of arable, meadow, &c. it is proper to have a more particular description in the deed of uses, which is the measure that usually guides juries in ascertaining the eftates comprised in a fine and recovery. And there are many inftances where the Court of Common Pleas has directed the Vide Tit. 35. defcription of lands in fines and recoveries to be amended, in conformity to the deed by which the uses were declared: hence there is an obvious propriety in connecting the defcription in the fine, with the description in the deed. There is alfo an advantage in ftating in the deed, the defcription contained in the fine.

36.

No Confidera. tion neceffary.

290.

§ 14. No confideration is neceffary to raise uses on a fine or recovery, although in the cafe of a bargain and fale, and covenant to ftand feifed, it has been 1 Ld. Raym. fhewn that a confideration is abfolutely neceffary. The reason of this difference is thus explained by Mr. Hargrave" In the former cafe" (that of a declara- 1 Inft. 123 4. ration of uses)" the estate is paffed completely from "the grantor or donor, without the aid of a court of

66

equity, and therefore it is immaterial whether the "ufe declared on the estate is gratuitous, or not; it being fufficient that the grantees or donees receive it, coupled with a truft or ufe. But in the latter "cafe (viz. that of a bargain and fale, or covenant to "ftand feifed) the tranfaction refts in covenant or

agreement, between the covenantor or bargainor "and the ceftui que ufe, and if the covenant or agree66 ment was not founded on the confideration of

n.

8.

Declarations

of Uses made

or Recoveries.

،،

"blood, or a valuable confideration, fuch as marriage or money, our courts of equity, which, till the 27 Hen. 8. had the fole cognizance of ufes, would

،،

not interpofe to compel the performance. In fewer "words, chancery would enforce ufes annexed to a "perfect gift, however gratuitous they might be, but "not those refting on a naked contract, without even "fo much as the confideration of blood to maintain "them."

§ 15. It has been stated, that where a deed declarprior to Fines ing the uses of a fine or recovery is executed, previous to the levying the fine or fuffering the recovery, it is called a deed to lead the uses of such fine or recovery; and although the ftatute of frauds requires, that all declarations of uses fhall be manifested by some writing, which excludes all averments, yet no other alteration in the law, as laid down in the Countess of Rutland's cafe, has taken place.

Ante f.

Jones v.
Morley,

1 Ld. Raym. 287.

2 Mod. 159.

§ 16. Ann Bowyer being feifed in fee of the manor of Trencham, by indentures of lease and release, in confideration of a marriage then intended between her and Edward Morley, and an agreement on the part of Morley, to fettle a jointure on her of 300l. a year, conveyed the fame to truftes, in truft for herself and her heirs, until the marriage took effect, and the jointure was made, and afterwards to the use of Edward Morley and his heirs. The marriage took place, and foon afterwards a fecond deed was executed, dated 29th January 1665, between the faid Edward and Ann of the first part, and trustees on

the

the other part, reciting, that a fine was already acknowledged and agreed to be levied in due form of law, next Hilary term, between the trustees named in that deed, and the faid Edward and Ann his wife, of the faid manor of Trencham, it was declared that the fame fhould enure, to the ufe of the faid Edward and his heirs. Two days after the execution of this last deed, and before the fine was levied, a writing indented was executed between the faid Edward Morley of the one part, and the faid Ann his wife, of the other part, whereby they both, in confideration of the marriage, and other good caufes, did covenant, confent, and agree to revoke all former grants, bargains, contracts, writings, covenants, and obligations, made or done between them, until the faid Edward had performed the agreements in the faid marriage fettlement, on his part; and that in default thereof, it might be lawful for the faid Ann and her heirs, to enter into the faid manor and land, conveyed by the faid fettlement, without the let of the faid Edward or his heirs.

The fine was levied octabis Purificationis, which was the 9th of February in that term. Edward Morley did not fettle a jointure, pursuant to the agreement, and Ann his wife died without iffue. The question was, whether the fine fhould enure to the use of Edward Morley and his heirs, according to the deed of the 29th January; or to the ufe of Ann his wife, and her heirs, according to the deed of the 31st January.

The Court of King's Bench was unanimoufly of opinion, that the fine did not enure to the ufes declared by the deed of the 29th of January; but that this deed was controlled by the writing of the 31ft of January; to prove which Lord Chief Juftice Holt premised three things. 1ft, If it be covenanted by deed to levy a fine of lands, &c. to such persons and ufes, and the fine is levied purfuant to the deed; no proof whatever, by parol, fhall be admitted, to prove that this fine was levied to other ufes than those which are contained in the deed; but a fubfequent deed may alter the ufes of the fine, though a parol agreement (as this writing between a husband and wife is not a deed, but amounts to a particular declaration) cannot. But if there be a variance between the deed and the fine, in any circumstance, then the parties may aver the fine to be levied to other ufes.

2d, Though there be a variance between the deed and the fine, yet if nothing appear to the contrary, the fine fhall be taken to be to the uses of the deed, and in that cafe the deed is not only evidence of the ufes, but the fine is by conftruction of law to the ufes of the deed.

3d, If the fine had agreed with the deed, the uses limited by the deed could not have been controlled by the writing of the 31st January; becaufe, though the deed of a feme covert is not valid in law, yet the deed having relation to the fine takes validity from thence, and will conclude her.

From

From these premises his lordship concluded, that the fine could not be to the ufe of the deed of the 29th of January, because the fine to be levied by that deed ought to have been levied the Hilary term next following, exclufive of that Hilary term in which the deed was made: but the fine was levied in the fame Hilary term in which the deed was made, and therefore there was a variance between the fine and the deed, and confequently room was left for averment; for if the deed had been pursued, the wife would have had twelve months to fee whether the husband would perform the marriage agreement, and if he would not, fhe might have refufed to join in levying the fine, of which benefit fhe was deprived, by its having been immediately levied. Then the husband, by the writing of the 31st of January, agreed to the terms ftipulated in the marriage fettlement, and the fine was levied accordingly, from whence it manifeftly appeared, that the agreement contained in the deed. of the 29th of January was relinquifhed, and the new agreement of the 31ft was defigned to lead the uses of the fine.

It was agreed by the whole court, that the writing of the 31st of January was a fufficient declaration of the ufes of the fine; and if it were not, yet it would be fufficient to controul the deed of the 29th, for it was there agreed, that all deeds, conveyances, &c. made in contradiction to the marriage fettlement, fhould be null and void; then if no ufe could arie under the deed of the 29th, the ufe refulted to the