Resulting 11 Mod. 182. 20. Before the statute 27 Hen. VIII., if a person had conveyed his lands to another, without any consideraDyer, 186b. tion, or declaration of the uses of such conveyance, he became entitled to the use or pernancy of the profits of the lands thus conveyed. This doctrine was not altered by the statute of uses; therefore it became an established principle, that where the legal seisin and possession of lands is transferred by any common law conveyance or assurance, and no use is expressly declared, nor any consideration or evidence of intent, to direct the use; such use shall result back to the original owner of the estate: for where there is neither consideration, nor declaration of uses, or any circumstance to show the intention of the parties, it cannot be supposed that the estate was intended to be given away. 1 Inst. 23 a. Sir E. Clere's Case, 21. In consequence of this principle, Lord Coke has laid it down as a rule,-"That so much of the use as the owner of the land does not dispose of, remains in him." So that where a person seised in fee simple levies a fine, or suffers a recovery, without any consideration, or declaration of the uses to which it shall enure, the use results back to himself; and the statute immediately transfers the legal estate to such resulting use; by which means he is seised in fee simple in the same manner as he was before: if any particular uses are declared, so much of the old use as is not declared to be vested in some other person, results back to the original owner. 22. Thus, where a man made a feoffment to the 6 Rep. 17 b. use of such person or persons, and for such estate and estates, as he should appoint by his will; it was resolved that the use resulted to the feoffor till he made an appointment. 23. So where a person made a feoffment to the use Woodliff of himself, and his intended wife, after their marriage; C v. Drury, it was determined that the use resulted to the feoffor 439. and his heirs, till the marriage. 24. In an ejectment tried before Lord Chief Baron Armstrong v. Wholesey, Parker, this short case was reserved for the opinion of 2 Wils. R. 19. the Court. A. B. being in possession of the lands in question, levied a fine sur conusans de droit come ceo, &c. to the conusee and his heirs, without any consideration expressed; and without declaring any use thereof: nor was it proved that the conusee was ever in possession. So that the single question was, whether the fine should enure to the use of the conusor, or to that of the conusee. After two arguments, the Court gave judgement for the plaintiff, who claimed as heir of the conusor; and said, that in the case of a fine come ceo, &c. where no uses were declared, whether the conusor were in possession, or the fine were of a reversion, it should enure to the old uses, and the conusor should be in of the old use. That in the case of a recovery suffered, the same should enure to the use of him who suffered it (who was commonly the vouchee), if no uses were declared. So in this case the ancient use was in the conusor at the time of levying the fine; for it seemed to have been long settled, that a fine without any consideration, or uses thereof declared, should enure to the ancient use, in whomsoever it was, at the time of levying the fine; and as it was here in the conusor, at the time, the judgement must be for the plaintiff. 2 Rep. 58 a. 25. Where a husband and wife levied a fine of the Beckwith's wife's estate, without any sufficient. declaration of Case, uses; it was held that the use resulted back to the Dyer, 146 6. wife only; because the estate in the land passed only Penhay v. 2 Vern. 370. 2 Freem. 258. Wills v. Palmer, 687. Fearne, Cont. from her; and the husband joined with her only for conformity. 26. Where a person levies a fine of his estate to trustees, to certain uses, and does not declare any use of the estate during his own life, it will result to himself. 27. A fine was levied to the use of trustees for 700 years, remainder to other trustees for 300 years, and from and after the death of the cognizor, to the use of his son for life, remainder to the first and other sons of such son in tail. It was resolved by the Lord Keeper, after consideration had with all the Judges, and a case, that as the cognizor had not limited away the freehold to any person during his life, it resulted back to himself. 28. Archdale Palmer, in consideration of the mar2 Black. R. riage of his son, settled an estate to the use of his son for life, remainder to his intended wife for life, remainder to the first and other sons of the marriage in tail, remainder to the heirs male of the body of Archdale Palmer, remainder over. It was resolved, that as the limitations to the son, and his first and other sons, might determine during the life of Archdale Palmer, a use resulted to him for life, expectant upon the determination of the estates limited to his son, &c. 29. But where the use is expressly limited away during the life of the grantor, no use can result to him. 30. A person, in consideration of marriage, conveyed lands to trustees, to the use of himself and his heirs till the marriage, then to the use of his intended wife for life, for her jointure, remainder to trustees and their heirs during the life of the husband, in trust to support contingent remainders, but to limited to the trustees during his life. 31. The use will result according to the estate 2 Rep. 58 a. which the parties have in the land. Thus if there be two joint tenants, and they levy a fine without any declaration of uses, the use shall be to them of the same estate as they before had in the land. So if A. tenant for life, and B. in remainder or reversion, levy a fine generally, the use shall be to A. for life, the remainder or reversion to B. in fee. For each grants that which he may lawfully grant; and each shall have the use which the law vests in them, according to the estate which they convey over. So if A. seised in fee of an acre of land, and he and B. levy a fine of it to another, without consideration, the use shall be to A. only and his heirs: for a use, which is but a trust and confidence, and a thing in equity and conscience, shall be by operation of law to him who in truth was owner of the land, without having regard to estoppels or conclusions, which are averse from truth and equity. 32. It was determined in a modern case, where a Roe v. fine was levied by a tenant for life, together with the Popham, Doug. Rep., remainder-man in tail, and the reversioner in fee; 24. and a declaration of uses was executed by the tenant for life, and the remainder-man in tail only; that the use of the reversion in fee resulted to the reversioner. 33. It is somewhat doubtful, whether in the case of a lease and release without any declaration of uses, the use results to the releasor; for reasons which will be Vide Tit. 32. stated when that mode of conveyance is explained. c. 11. But if any particular use is declared on a lease and release, the residue of the use will result back to the releasor. 34. Where the same use is limited to the owner of 1 Inst. 22 b. the estate, which would have resulted to him, in case no declaration of that use had been made; the declaration is void, and he takes it as a resulting use. Read and 35. Anthony Mitford being seised in fee of the estate in question, conveyed the same to the use of his eldest son and his wife, and the heirs male of the body of his son, remainder to the use of his own 2 Rep. 91 b. right heirs. It was resolved, that the use limited to Moo. 284. Uses by Pybus v. 1 Vent. 327. the right heirs of Mitford was the ancient use, which was never out of him; and was in fact a reversion in him to grant or charge; and would descend from him to his heir if it had not been mentioned: that the limitation to his right heirs was therefore void, being no more than what the law had already vested in him. 36. The same rule takes place in all conveyances to uses, which operate without transmutation of possession: as in covenants to stand seised, and bargains and sales, where the uses arise out of the estate of the covenantor or bargainor: for in these cases so much of the use as the covenantor or bargainor does not dispose of, still remains in him as his old estate; and is usually called a use by implication. 37. A. being tenant in fee, covenanted to stand seised to the use of his heirs male, begotten, or to be begotten on the body of his second wife. It was determined that A. took an estate for life by implication for the limitation being to the heirs of his body, &c. and it being impossible for him to have |