presumed that she consented to the declaration of uses. If a wife joins her husband in selling her es- Lusher v. tate, and afterwards joins in a fine of it, to the Banboug, Dyer, 290 b. vendee and his heirs; it will bind her, without any writing proving her assent. A husband and wife levied a fine of the wife's land to a purchaser; afterwards the husband alone declared the uses of it; the question was, whether the wife was bound by the declaration of uses. Lord Hardwicke said, as no other deed was shown that declared different uses, and the uses declared did not vary from what the wife intended, it should bind her: therefore the bill which she had brought, after an acquiescence of fifteen years, since her husband's death, for possession; on suggestion that she was not bound by the fine, as she did not join in the declaration of uses, must be dismissed. Where the wife dissents from her husband's de Swanton v. Webb v. Worsfield, 2 Roll. Ab. claration, it will be void, as to her: therefore if 33. A declaration of the uses of a fine or recovery 2 Rep. 57 b. by a married woman alone, without the concurrence of her husband, is void; because a married woman Johnson v. being sub potestate viri, cannot declare the use Cotton, without him. 34. Where a husband and wife make different declarations of the uses of a fine or recovery, they are both void. Skin. 275: Beckwith's 2 Rep. 56. 2 Rep. 58 a. Uses, 246. 35. C. K. and Eliz. his wife being seised of lands which were the estate of Eliz., an indenture was executed by Eliz. without the consent of her husband, by which she alone declared the uses of a fine, which afterwards should be levied. Eight years after, the husband executed an indenture, without the assent of his wife, by which uses were declared, different from those contained in the deed executed by the wife. The fine was afterwards levied by the husband and wife to the persons' mentioned in the deed executed by the wife; and it was found, that there were no other uses declared. Resolved, that both the declarations of uses were void; and that the fine enured to the use of the wife and her heirs. 36. It was also resolved in this case, that if the husband and wife agree in the declaration of the uses of part of the land, and vary in the declaration of the residue, it will be good for the part in which they' agree, and void for the residue. But if there be a variance in the limitation of the first uses, though there be a similarity in the limitation of the subsequent uses, all is void. "For (says Gilbert) as to that part in which they both agree, all the requisites are found necessary to make a declaration, and the defect of the other part can have no influence on that which is good. But if they agree in the limitations for part of the estate in the land, and disagree in the other estates, there all is void: for else there will be another moulding of the estates than the feme designs; and her consent is requisite to every estate that shall be created by the limitation of uses; for it is to be ordered by her direction. Thus, if the husband declares the uses to himself and wife for life, the remainder to the heirs of the wife; and the wife declares the uses to herself for life, and then to her own right heirs; both declarations are void; and it shall not stand good for the remainder in fee, and be void for the rest; for the estate moving from the wife, whatever uses do take effect, must be by her direction and consent, and in the same manner as she pleases. Though the husband has power over the estate of the wife during coverture, yet if she declares the use one way, and he another, his declaration is absolutely void, and it shall not stand good during the coverture. The reason of the dif ference seems, that in other cases, the husband having power over the wife's estate, he may grant an interest, as from himself, during the coverture; for so long he has power over the estate. But when they levy a fine in fee, the estate passes solely and entirely as one estate in fee simple from the wife; and the uses that are declared thereupon must be all with the consent of the wife, for the whole estate; because the whole estate and interest passes from the wife." Lunatics. 37. If an idiot or lunatic is permitted to levy a Idiots and fine, or suffer a recovery, he may declare the uses of it. Because a fine and recovery being matters of Tit. 35 & 36. record, no averment of idiocy or lunacy is admissible Hob. 224. against them. But in cases of this kind, as well as in that of an infant, the Court of Chancery will relieve. declare Uses 38. The right of declaring the uses of a fine or re- The Right to covery is precisely co-extensive with the quantity and is co-extennature of the estate or interest which each of the sive with the parties has in the lands. 39. If therefore a tenant for life and the person entitled to the remainder or reversion join in levying a fine, or suffering a recovery, they may declare the uses according to their respective estates in the land. Estate. Noy R. 20. 2 Rep. 58 a. Palm. 405. Roe v. Pop- Uses may be declared on a Lease and 40. So if there be two joint tenants who join in levying a fine, or suffering a recovery, and one de, clares the use in one manner, and the other in another; each of them shall be good for their respective parts. Because the declaration of the uses shall be directed and governed according to their several estates and interests. 41. It was held in a modern case, that where a fine was levied by a tenant for life, remainder-man in tail, and reversioner in fee; a declaration of uses by the tenant for life, and the remainder-man in tail, did not bind the reversioner. 42. It was resolved in Samme's case, 13 Rep. 55., that upon a release which creates an estate, a use Release. may be limited; but that upon a release or confirmation, which enures by way of mitter le droit, no use can be limited. It follows, that a use may be declared on a lease and release in fee; for in that case, the release creates a freehold estate and it has been the constant practice for the last century to make all settlements by a bargain and sale for a year, with a release in fee to trustees, and to declare the uses upon that conveyance; in which case the uses arise out of the seisin of the releasees, and are usually declared in the same deed. Cases and Opinions, yol. 2, 288. The Releasee cannot dissent. 43. It should however be observed, that no person can declare uses on a lease and release, who is not capable of transferring lands by that mode of conveyance. Therefore, a declaration of the uses of a release by an infant, a married woman, an idiot or lunatic, would be void; because an averment of these disabilities might be made. 44. In the case of a lease and release to uses, the seisin is in the releasee, without any agreement or assent on his part, and will serve the uses declared on the release: nor will a subsequent disagreement by the releasee, defeat the uses declared in the release. 45. Thus it is said in Roll's Ab. to have been re- vol. 2. 787. Gorton's 224.505. 3d Edit. solved, that if a man seised of lands in fee, with in- Case, tent to convey to B. in fee, for money, demises, Gilb. Uses, grants, bargains, and sells it to A. for years, years, and after releases in fee to A. to the use of B. in fee; this release is good before any agreement of A. to have it as a bargain and sale. And if A. after elects to have it as a lease at common law, yet he shall not devest the estate of B. thereby. For, prima facie by the intent of the lessor, A. being only named as a means of conveyance for the settlement of the land to B., was possessed as a bargainee; and when the release has settled the estate in B., A. cannot, by his election, make it void. |