CHAP. XIII. OF A COVENANT TO LEAD USES. DEEDS to lead, or to declare the uses of fines and of recoveries, necessarily govern and controul these common law assurances. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers the same. Shep. Pr. 68. Pig. 41. 2 Bl. Com. 363. These assurances, therefore, could not be made to answer the purposes of alienation or of family settlements (wherein a variety of uses and designations is very often expedient,) unless their force and effect were subjected to the directions of other more complicated deeds, wherein particular uses can be more particularly expressed. Com. 363. 2 Bl. If these deeds are made previous to the fine or recovery, they are called deeds to lead the uses: if subsequent deeds, to declare the same. Ibid. Thus if A, tenant in tail, with reversion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what, by law, he has no power of doing effectually, while his own estate tail is in being. Ibid. He must, therefore, after making the settlement proposed, covenant to levy a fine, or if there be any intermediate remainders over, to suffer a recovery to E, and direct that the same shall enure to the uses in such settlement mentioned. 2 Bl. Com. 363. This is now a deed to lead the uses of the fine or recovery; and the fine, when levied, or recovery when suffered, shall enure to the uses so specified and no other ;* for though E, the cognizee, or recoveror, hath a fee-simple vested in himself by this fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit pipe, seized only to the use of B, C, and D, in successive order; which use is executed immediately by force of the statute of uses. Ibid. Uses may be thus declared on a feoffment also; but upon a bargain and sale, no declaration can be made of any other use than that which the law doth make upon it.† Shep. Pr. 68. If a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good as if it had been expressly levied or suffered, in consequence of a deed previously directing its operation to those particular purposes. 2 Bl. Com. 364. For by STAT. 4 & 5 Anne, c. 16, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and recovered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds. 29 Car. 2. c. 3. to the contrary. In respect of deeds to lead the uses of fines or recoveries intended to be levied or suffered, the FORM of covenants for that purpose, in p. 126 and 193 may be adopted: and if there has been a fine or recovery previously levied or suffered, the deed to lead the uses thereof should be in the following form: * For upon a covenant of uses no declaration may be declared of other uses than what are in the deed. Shep. Pr. 68 DEED TO LEAD THE USES OF A FINE OR RECOVERY. (Already levied or suffered.) THIS INDENTURE made, &c. BETWEEN, &c. (describing the parties,) and after all proper preliminary recitals reciting, AND WHEREAS, in pursuance of the said agreement, (or as the case is,) the said A B, and C his wife, did acknowledge and levy a fine sur conusance de droit, comme ceo, &c. before the Justices of his Majesty's Court of Common Pleas at Westminster, unto the said of all the said hereditaments and premises, in, or as of term now last past [or of term, which was in the year of the reign of his present Majesty King George the Fourth,* as the case may be,] or, AND WHEREAS a common recovery was duly suffered before the Justices of his Majesty's Court of Common Pleas at Westminster, of all the said hereditaments and premises term now last past, [or in - term, which was year of the reign of his present Majesty, was demandant, the said in and his wife, vouchers, who vouched over the common vouchee of the said court, as by the records of the said court reference, being thereunto had, will appear: Now THIS INDENTURE WIT NESSETH, and it is hereby declared and agreed, by and between the said parties to these presents, as far as they are respectively interested in the premises, that as well the said fine or fines [or recovery or recoveries] so as aforesaid, or in any other manner, or at any other time to be had and levied [or suffered,] of the same premises, and also all and every other fine and fines [or recovery and recoveries,] and all other conveyances and assurances in the law whatsoever, already had, made, levied, suffered, or executed, or hereafter to be had, made, levied, suffered, or executed, of the said premises, or any part thereof separately, or together, with any other hereditaments by and between the said parties to these presents, or any of them, either alone or jointly with any other person or persons, or whereunto they or any of them are, is, or shall be parties or privies, or party or privy, shall, from and after the perfecting thereof, BE AND ENURE, and be construed, deemed, adjudged, and taken to be, and enure; and it is, and are hereby declared to have been, at the time of the making, levying, suffering, and executing the same, meant and intended to be and enure, and the conusee or conusees [or recoveree or recoverees,] in * See also the recital of a fine in p. 78, supra. such fine or fines [or recovery or recoveries,] or other assurance or assurances, or any of them named, or to be named, or to whom the same have or hath been, or shall or may be levied, suffered, or made; and his and their heirs shall stand and be seized of the said hereditaments and premises of which the same fine [or recovery] hath been so levied [or suffered]* as aforesaid, with their and every of their appurtenances, TO THE USE AND BEHOOF OF, &c. IN WITNESS, &c.+ Or may be. is hereby agreed to be levied [or suffered,] as the case A deed to lead or declare the uses of a fine or recovery, need not in general be executed by the conusee of the one, or the tenant on the other, who is in general merely a formal party, without possessing any interest in the subject of the fine or recovery; but if he possess an interest, however remote or trivial, it will be necessary for him to be an executing party to prevent future difficulties, therefore, being raised on the title, it has been deemed the better way for both these parties to execute the deed. Vide 3 Prest. Prac. 67. CHAP. XIV. OF A REVOCATION. A REVOCATION signifies the calling back of a thing granted, or a destroying or making void of some deed or instrument that had existence until the act of revocation made it void. 2 Lit. Abr. 485. Letters of attorney, and other personal authorities under seal, may be revoked by instruments of the same solemnity, -that is to say, by deeds under seal, by the persons giving the powers; and as they are revocable in their nature, it has been adjudged that they may be revoked, though they are made irrevocable.* 8 Rep. 82. Wood's Inst. 286. However, in these cases there ought to be notice to the party; for if once the power be executed, a revocation afterwards will come too late. Dyer 230. DEEDS of revocation of uses are, however, founded on a previous power expressly reserved in the deed, whereby the uses were raised, to revoke such uses as are therein declared, and to appoint others in their stead.† 2 Black. Com. 339. Provisoes and powers of revocation of uses of lands are very frequent in voluntary conveyances that pass land by way of raising uses, and are executed by the STAT. 27 Hen. VIII * Unless there is a valuable consideration for the power, and the party empowered stands in the character of a purchaser. ↑ And this power of new appointment is incident to the power of revocation. Co. Lit. 237. |