any such heirs during his life, as nemo est hæres viventis, the use was undisposed of during his life, consequently remained in him. 38. It follows from the same principle, that where no use arises upon a covenant to stand seised, or bargain and sale, either for want of a sufficient consideration, or for any other cause, such use will Tit. 32. c. 10. remain in the covenantor or bargainor. 39. From the nature of resulting uses, and uses by implication, it follows, that they can never arise to any person but the original owner of the estate. No Use rethe Owner sults but to of the Estate. 40. Husband and wife levied a fine of the wife's Davis v. Speed, estate, to the use of the heirs of the body of the Show. Ca. in husband on the wife begotten; remainder to the Parl. 104. husband in fee. It was resolved, that no estate resulted to the husband, because the lands originally belonged to the wife. This judgement was affirmed by the House of Lords. the Intent of the Parties. 41. Where there is any circumstance to show the Nor against intent of the parties to have been that the use should not result, it will remain in the persons to whom the legal estate is limited. ston's Case, Dyer, 166 a. 42. A recovery was suffered by one Hummerston, Hummerto the intent that the recoveror should make an estate to him and his wife for their lives, remainder n. 9. to their eldest son in tail, &c. It was agreed by the Court, that after the recovery suffered, the recoverors should be seised to their own use; for if they were seised to the use of Hummerston, then they could not make the estate. But Southcot and Wray said they ought to do this in convenient time, otherwise the use would result to Hummerston. 43. A fine was levied, and an indenture made to Idem. declare the uses of it; the words of which were, "the fine was levied to the intent that they should make Winning ton's Case, Ca. 44. an estate to him to whom J. E. the father (who was the cognizor) should name." And there was a proviso at the end of the indenture, that the cognizee should not be seised to any other use, except unto that use specified. It was holden by all the justices, that the lands should be to the use of the cognizees themselves, immediately as above that after the nomination, they should be seised to the use of whomever he named; and if J. E. died without nomination, then the law would settle the use in his heir. 44. A feoffment was made by A. upon condition Jenk. Cent.6. to reconvey to A. for life, remainder to the eldest son of A. in fee. It was resolved, that no use resulted to A.; for if so, then the estate would vest by the statute of uses, and the feoffee could not make an estate to A. and to his son. vide Altham v. Anglesey. dence allowed to show the Intent, Roe v. Pop ham, Doug. 45. As resulting uses depend on the intention of the parties, parole evidence is admissible, to show what the intent was: and the clause in the statute of frauds, requiring that declarations of trusts and confidences, which is held to include uses, should be made by some writing, signed by the party; extends, in cases of conveyances to uses, to third persons 11 Mod. 214. only; not to the persons conveying, or those to whom lands are conveyed to uses. 24. vide Tit. 32. c. 3. Nor which is inconsistent with the Estate limited. Dyer, 111 b. n. 46. 46. Where a use is expressly limited to the owner of the estate, he will not be allowed to take any resulting or implied use, inconsistent with the use limited to him. 47. At a moot in Lincoln's Inn Hall, Mr. Noy put this difference:-If a man makes a feoffment in fee to the use of himself for life, the fee simple remains in the feoffees, for otherwise he will not have an estate for life, according to his intention: But if the use be limited to himself in tail, it is otherwise; for both Tit. 2. c.1. §38. estates may be in him. 48. It was held in the Court of Wards, by Popham Idem. and Anderson, in the argument of the Earl of Bedford's case, that if A. makes a feoffment to the use of himself for forty years, and does not limit any other estate, the fee will not result, but will remain in the feoffees; for otherwise the term would be merged. 2 Salk. 679. 49. One Savage being seised in fee, conveyed his Adams v. estate, by lease and release, to trustees and their heirs, Savage, to the use of himself for 99 years, remainder to trustees for 25 years, remainder to the heirs male of his own body. It was determined that no use for life resulted to Savage, because that would be inconsistent with the term of 99 years expressly limited to him. 50. A. by a settlement made on his marriage, conveyed certain lands to the use of himself for 99 years, if he so long lived, and after to the use of trustees for 200 years, remainder to the use of the heirs male of his own body, remainder to his own right heirs. Upon a case referred to the Judges of the Court of Common Pleas, from the Court of Chancery, they held that no estate of freehold could result to A. for his life, because another estate, viz. for 99 years, if he so long lived, was expressly limited to him; which would be inconsistent with a resulting estate of freehold. Rawley v. Holland, 2 753. 22 Vin. Ab. 188. pl. 11. Estate Tail, for Life or 51. The doctrine of resulting uses only extends to Nor on a those cases where an estate in fee simple passes. For if Grant of an a person conveys an estate to another in tail, without any consideration, or declaration of uses, no use will result to the donor, and consequently the donee in tail will hold to his own use. For by a gift of this Years. Bro. Ab. Tit. 5. Idem. pa. 65. Castle kind there is a tenure created between the donor, and the donee in tail, which amounts to a consideraration, and prevents the use from resulting; in the same manner as if a feoffment in fee had been made before the statute of quia emptores terrarum, the feoffee would have held the land to his own use; because a tenure was thereby created; in consequence of which he would have held of the feoffor, by fealty at least. 52. In the same manner, if a person leases lands to another for life, or years, no use will result to the lessor. So if a lessee for life or years grants over his estate without any declaration of use, the grantee will have it to his own use. In Gilbert's Uses, the reason given for this doctrine is, that these lesser estates were not used to be delivered to be kept for the future support and provision of the family: therefore the mere act of delivering possession passed a right, without consideration; since there was a presumption, from the use of the country, that these estates were transferred under secret trusts; especially as rents were usually reserved; and they were subject to waste, and other forfeitures. 53. In the case of a conveyance of an estate for life or years, without consideration, although a use should be declared of part of the estate to the grantee, yet there will be no resulting use to the grantor. 54. A. being tenant for life, granted his estate to B. by fine, and by indenture declared the use to B. for the life of A. and B.; and if B. died, living A., that it should remain to C. Afterwards B. died, living A.; C. entered, and let to D. for years, and died, living A. The question was, whether the lessee should retain the land as an occupant, during the life of A., or that A. should have it again as a resulting use. "It was adjudged, after argument, that D. should have it as an occupant, and that A. had not any residue of the use in him: for although where tenant in fee makes a deed of feoffment, and limits the use for life or in tail, and doth not speak of the residue, it shall be to the feoffor or conusor, because he had the ancient use in him in fee; yet when tenant for life, or he who hath the particular estate, grants his estate by fine, and limits the use for years, or for a particular estate, it shall not return to him, but be to the conusee, although the fine were without any consideration; because he who hath the particular estate by fine, is subject to the ancient rent and forfeiture; which is a sufficient consideration to convey the estate to him." Nor on a 55. As a devise imports a bounty, it follows that it must be to the use of the devisee, if not otherwise expressed: and that no use can in any case result to the heirs of the devisor; unless it appears by the will itself, that the devise was not made to the use of the devisee if the use declared on the devise be void, 1 Leon. 254. the devise itself will be void. Tenant in 56. Where a tenant in tail suffers a recovery of What Use his estate, by which it is converted into an estate in results to a fee simple, without declaring any uses thereof, it has Tail. been doubted whether the use which results to him be in tail or in fee. The language of the old books is, that where there is a feoffment, fine, or recovery, without consideration, or declaration of uses, these assurances shall enure to the old uses. 57. Thus where a father tenant for life, and the Argolv. Cheney, son tenant in tail, joined in suffering a common reco- Latch. 82. |