USES. Fine. No. CCCCLXXXVII. Declaration of the Uses of a Fine already levied (1). Variations where the Fine is levied to bar by non-claim. Where the Declaration is of the Uses of Recovery. THIS INDENTURE of two parts made the day of in BETWEEN (the cognizor) of, &c. of the one part, and (the cognizee) of, &c. of the other part. year of the reign, &c. and in the year of our Lord WHEREAS (2) the said Parties. Recital of fine levied. the 18 Subsequent declaration of uses of fine or recovery, good. Recovery. Recital of recovery suffered. (1) By 29 Car. 2. c. 3. s. 7. all declarations of trust, &c. must be in writing, and signed by the party declaring the trust, and if not subsequent to the fine or recovery, must be by deed; but the statute requiring declarations of trusts, &c. to be in writing, extends as to fines to such persons only, and not to the cognizors or cognizees, because the resulting use to the cognizors may be rebutted by parol; see Dougl. 25. ; and that declarations of uses after a fine or recovery levied or suffered, are good as well since as before the statute; see Bushell v. Burland, 11 Mod. 196, Holt. Rep. 733. It was formerly doubted whether deeds executed subsequently to the levying a fine or suffering a recovery, would operate so as to direct the uses of such fine or recovery, but it has since been decided that such subsequent declaration is valid. See Downman's Ca. 9. Co. 7; Bushell v. Burland, Rep. Temp. Holt. 733. 1 Mod. 196, and the 4 and 5 Ann. c. 16, s. 15, expressly enacts, that "All declarations or creations of uses or trusts of any fines or common recoveries, manifested by a deed after the levying or suffering thereof, shall be as good in law as if the act of 29 Car. 2. c. 3. (which declares that all trusts shall be declared in writing at and not after the time of their creation) had not been made." (2) If the declaration be of the uses of a recovery already suffered, say, "WHEREAS a common recovery was duly suffered before the justices of the Court of Common Pleas, at Westminster, in his wife in USES. Fine. But no uses de clared. (cognizor) and term last past acknowledged and levied in due form of law a fine, sur cognizance de droit come ceo, of ALL, &c. (1), as by the said fine remaining of record in his Majesty's Court of Common Pleas at Westminster, reference being thereunto had, will more fully appear. AND WHEREAS no uses have yet been declared of the said fine, but it is intended that the same should enure, and that the lands and hereditaments therein comprised, should be limited to the uses hereinafter expressed. Now WITNESS. THIS INDENTURE WITNESSETH, and it is hereby declared and agreed uses. by and between the said parties to these presents, so far as they are respectively interested in the said premises, and they hereby severally and respectively direct, appoint, and declare (2) that as well the said fine (3) so had and levied (4) of the said premises as hereinbefore is mentioned, as also all and every other fine and fines, and all other Declaration of term, which was in the jesty, of ALL, &c. wherein the said tenant, and the said year of the reign of his present Ma- and who vouched over the common vouchee of the said court, as by the records of the said court, reference being thereunto had, will more fully appear." (1) Insert here a particular description of the premises by their ancient Parcels. and present names, situations, boundaries, &c. In a declaration of uses the lands ought to be described in the same Description of manner and with as much minuteness as in a lease or purchase-deed, for the premises in as lands are described in a fine or recovery only by the number of mesdeeds declaring uses of fine suages, acres of arable or pasture land, &c. in the same manner as in a should be accupræcipe quod reddat, it is proper to have a more particular description rate. of them in the deed declaring the uses, which is the measure that usually guides juries in ascertaining the estates comprised in a fine. And there are many instances where the Court of Common Pleas has directed the description of lands in a fine to be amended in conformity to the deed of uses. See Cru. Us. 111. See Rowlitt v. Orliban, 6 Taunt. 73. See Description of New River Shares, ante, Vol. II. p. 367. n. (3). (2) No consideration is requisite to raise a use in a fine or recovery. See Consideration. Cò. Lit. 123 a. n. (8); and in Dowman's Ca. 9 Co. 7. it is said that no averment can be admitted to prove that no such uses were intended at the time when the recovery was suffered contrary to the declaration contained in the indenture; and see Jones v. Morley, 1 Ld. Raym. 287. Show. P. C. 140. (3) If the declaration be of the uses of a recovery, that word must be Recovery. substituted for the word "fine" throughout the precedent, as in the declaration of uses inserted, ante, Vol. II. p. 412. (4) If the declaration be of the uses of a recovery, say, suffered", throughout the precedent. "had and Recovery. USES. Fine. conveyances and assurances in the law whatsoever heretofore had. made, levied, or executed of the said premises or any part thereof, either separately or together with any other hereditaments, by or 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 or either of them were, or was, or are, or is, or shall, or may 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 the same is and are respectively hereby declared to have been at the time of the making, levying, and executing the same meant and intended to be and enure, and the cognizee or cognizees in such fine or fines, 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, made, or executed, and his and their heirs, shall stand and be seised of the said hereditaments and premises of which the said fine has been so levied as aforesaid, with their and every of their appurtenances, To THE USE (1) and behoof of the said (covenantee), his heirs and assigns, for ever; and to and for no other use, intent, or purpose whatsoever, unless and until some other uses, ends, or purposes, shall hereafter be lawfully declared thereof by him the said (covenantee), his heirs or assigns (2). IN WITNESS, &c. Confirmation of subsisting leases. Wales, &c. (1) If the declaration be of the uses of a recovery, and subsisting leases are to be confirmed, see ante, Vol. II. p. 413. n. (1). (2) If the lands be situated in Wales or a county palatine, in which case the writ of covenant can be returned only at the next great sessions, and not, as in other counties, as of the preceding term, it may sometimes be advisable to bar the entail by warranty; in which case, say, "AND for docking, barring, and destroying the estate tail of the said (tenant in tail) of and in the said lands and hereditaments, under or by virtue of the said hereinbefore in part recited indenture, or otherwise, and all other estates tail, and all reversions and remainders expectant or depending thereupon, and all conditions and collateral limitations, if any, annexed to or affecting the same, and for settling and assuring the same to, upon, and for the uses, trusts, intents, and purposes hereinafter expressed, he the said (tenant in tail) for himself and his heirs, by these presents DоTH, and at all times and from time to time hereafter, shall and will warrant and defend the same hereditaments and premises with their appurtenants, unto and to the use of the said (covenantee), his heirs and assigns, for ever, against him the said (tenant in tail) and his heirs, and all and every other person and persons whomsoever. AND for the further and more ef fectually and satisfactorily barring and destroying the said estates tail, HE the said (tenant in tail) for himself, his heirs, executors, and administrators, doth hereby covenant", &c. as above. USES. Fine. SUP.-VOL. III. See ante, "STAMP", Schedule. Stamp. USES. Fine. No. CCCCLXXXVIII *Declaration of the Uses of a Fine levied by a Purchaser to cure a Defect of Title. THIS INDENTURE made the in the year day of of the reign, &c. and in the year of our Lord 18. BETWEEN (the purchaser) of, &c. of the one part, and cognizee (trustee), of, &c. of the other part [recite the conveyance to the purchaser]. AND WHEREAS the title deduced to the said (vendor) by the said in part recited indenture, and the preceding assurances of the said hereditaments was, on the investigation of counsel, considered to be indefeazable, but the said (purchaser) is desirous, for the sake of further assurance to him and his heirs of the said hereditaments, to levy a fine sur cognizance de droit come ceo, &c. with proclamations to be thereupon had, according to the statute in such cases provided, to the uses directed in the said in part recited indenture. AND WHEREAS a fine sur cognizance de droit come ceo has accordingly been acknowledged thereof, as of term last past to the said (cognizee) and his heirs, by the name and description of ene messuage, &c. (inserting the description in the fine). AND the same is intended to be forthwith levied and perfected with proclamations as aforesaid. AND WHEREAS no uses have yet been declared of the said fine, but it was and is intended that the same should enure, and that the lands and hereditaments therein comprised should be limited to the uses hereinafter expressed. NOW THIS INDENTURE WITNESSETH, and it is hereby declared and agreed by and between Declaration of the said parties to these presents, so far as they are respectively interested in the said premises, and they hereby severally and respectively direct, appoint, and declare, that as well the said fine so acknowledged and to be had and levied of the said premises as hereinbefore is mentioned, as also all and every other fine and fines, and all WITNESS. uses. |