Now in this resolution, there is not a single syllable which denies the validity of the declaration of the uses, when the husband and wife agree in limiting an estate for life to A, though they do not agree in the limitation of the ulterior uses.- The language of Lord Bacon is, if they sever, then it is good for so much of the inheritance, as they concurred in (f).

When the wife agrees with the husband in the limitation of the ulterior uses, but differs from him in limiting the first use, it is possible, and even probable, that all the ulterior uses, unless they contravene the rule against perpetuities, may be supported as springing uses.

12. Of resulting Uses.

It is also to be observed that as far as no uses shall be declared, or the use of the fee shall be limited in contingency (g), the use will result to the former owner, according to the estate he had at the time of levying the fine. Or if several persons who have [317]distinct estates, as tenant for life and re

mainder-man in fee, or as joint-tenants who hold to them and the heirs of one, join in a fine, without declaring any uses, the uses

(f) Bac. on Uses, 67.

(g) 2 Roll. Abr. 789. 2 Co.

will result according to the former ownership. (h) The exceptions are, that no use will result on a fine sur grant et render or on the grant of a particular estate (i); and that the conusee in a fine may aver an use in himself, or more correctly speaking exclude the resulting use, notwithstanding there is not any express declaration (j); and also that a tenant in tail, instead of having his old estate-tail under a resulting use, will have a fee-simple, in case the fine operates as a discontinuance; and a base or determinable fee, in case the fine operates merely and simply as a conveyance.

The books are involved in some obscurity on this point. They say, the fine shall enure to the old or former uses (k).

These book are to be understood with the qualification that the uses result according to the former ownership, and not so as to revive the intail. This point has been expressly decided as to recoveries, and is equally relied on as to uses resulting from a fine (1).

Suppose a tenant in tail and the owner

(h) 2 Co. 58. Mo. 46. (i) Mo. 106. 2 Co. 76. (j) Altham v. Anglesey, Gilb. Eq. Ca. 17. 11 Mod. 210. Roe v. Popham, Dougl. 24. Thrustout v. Peake, Str. 12.

(k) Waker v. Snow, Palm.

352. Argol v. Cheney, Latch 82. Dougl. 25.

(1) Hodges v. Fowler, in the Exch. 1777. Maxon v. Moxon, ib. Com. Dig. Uses, D. 2. Nightingale v. Ferrers, 3 P. W. 207.

of the reversion in fee to join in a fine, and the use to result to them according to their former ownership; it is an interesting and curious point, involving a large portion of learning to be drawn from first principles, whether the tenant in tail or his heir can afterwards by suffering a common recovery bar the reversion. He might have done this before the fine. Strong are the arguments against his right, after the fine, to exercise this incidental power annexed to his estate-tail.

In point of law his estate-tail is extinguished by union with the fee. It is under rules of courts of equity, and the statute of uses working on these rules, that he has a like interest, corresponding as near as may be to an estate-tail, and not the same identical estate,-that the use results for a base fee. It seems that in equity, before the statute of uses, there would not have been an equitable estate-tail: and if there would not have been an equitable estate-tail, there would not have been a right to bar the remainder or reversion.

In answer, however, to this argument it may be urged, that even at law, and so in equity, an estate-tail, though converted into a base fee, confers the right on the donee in tail or his heir to enlarge the base fee into a fee-simple, to the prejudice, and in

exclusion of the reversioner or remainderman (m). But this reasoning does not seem sufficiently cogent to establish the right in the former tenant in tail to bar the remainder man by a common recovery. The point, however, is one of difficulty and of considerable nicety, and may be decided either way without much sacrifice of principle.

When the use of the fee results, that fee will be descendible from the first purchaser of the estate. For this reason, a fee which descended ex parte materna, will, under the resulting use, be descendible in like manner (n).

So if an estate-tail be taken by descent ex parte paterna, the fee taken by resulting use will be descendible, as if the donee in tail had taken the fee, as the purchasing ancestor (o).

And whether the use results, or is expressly declared, the same course of descent will prevail.

But a fee taken under the render of a fine is a new estate, and the conusee in the render will be deemed the purchasing ancestor. The fine sur grant et render is a double conveyance. It partakes of the nature, and

(m) Supra, 139.

(n) Abbot v. Burton, Salk. 590. Fenwick v. Mitford, 1 Leo. 182. Co. Litt. 22. b.

(0) Roe d. Crow v Baldwere, 5 T. Rep. 104. Martin v. Strachan, 5 T. Rep. 107, in

a note.

has the effect of a feoffment and re-enfeoff

ment (p).

Of Deeds to lead, and Deeds to declare the
Uses of Fines.

When a fine is levied after, and in pursuance of, a covenant or agreement to levy a fine and declare the uses thereof, the deed containing such declaration or agreement [ 319 ]is correctly denominated a deed to lead the uses of the fine; while a deed declaring the uses of a fine, takes its denomination from the circumstance that the deed is subsequent in date to the fine, and executed after the fine has been levied.

The subject of deeds to lead, and of deeds to declare the uses of fines, is of considerable interest to the profession. These deeds frequently occur in practice, and produce a material change in the title. To state the cases, and the rules of law on which they are grounded, and give the proper forms of deeds, will require more space than can be allotted for them in this volume. This learning will be the subject of the first chapter of the next volume.

(p) Price v. Langford, Salk. 337.