B. will be an use of the estate of A.,—an use on an use (n), and cannot be executed [ 190] by the statute. Supposing the estate to be legal, the legal estate will abide in A., and he and not B., is the proper person to be named tenant of the freehold. It is, on one hand, to all bargains and sales by owners of the legal estate, to operate under the statute of uses, or through the medium of that statute; and, on the other hand, to those assurances only which are to operate on the legal ownership, and under the statute of uses, or through its medium, that these observations are applied. Perhaps, in support of an equitable recovery, a court of equity would consider the equitable freehold as passing to B. The intention of the parties is evidently directed to the object of placing the equitable freehold in him, and in equity, the intention and object of the parties, rather than the form of the instrument, is regarded: and the transaction requires, that B. should have the equitable freehold, as the only means of giving full effect to the intention. Under these circumstances, also, it may be necessary to recur to the point, that the instrument, even as a legal assurance, may be attended with circumstances, which will allow of its operating as a grant at the com (n) Tyrrell's case, Dyer, 155, a. mon law (0): and any instrument which may operate as a grant, will pass a common law seisin, and uses may be declared with effect, and arise on that seisin. In many cases, this construction might have been resorted to with success, and a title supposed to be [191]defective, as to the legal estate, might, by this application of the rules of law, have been supported. It remains only to be observed, that on bargains and sales to operate under the rules of the common law; as bargains and sales,-by executors who have an authority to sell,-by commissioners of bankrupt, and under land-tax, and other acts of parliament; uses may be declared. These bargains and sales pass a common law seisin, and not an use, and uses may be declared of that seisin. Also, though a bargainee, whose estate is executed by the statute, has no seisin of which uses can be declared with effect, to be executed by the statute, otherwise than under a new conveyance, or a new contract, proceeding from him; yet uses may, in a bargain and sale, be declared of the seisin acquired by the demandant, or recoveror, in the recovery.-Uses of the latter description, are free from the technical objection of being uses on an use. These uses arise, in point of law, from the seisin of the de(0) Supra, 41, & 180. mandant-In short, they arise from a new conveyance, produced by the effect of the common recovery. Appointments made through the medium of a power in, or arising under, a conveyance to uses, are open to observations very like to those made on bargains and sales.— The appointee takes the immediate use: and all ulterior uses declared of his estate are uses on uses, and have no effect on the legal estate. They are good only as trusts, conferring an equitable ownership. For instance, when A. has a power over the use, and he appoints to B. and his heirs, to the use of C. and his heirs, B. takes the use, and the use declared for the benefit of C. is merely a trust. This subject will be more fully considered in the chapter on Appointments. When circumstances require that a partial estate of freehold should be limited to the intended tenant, and that other uses should be declared, these uses may be declared in the mode which has already been pointed out for that purpose (p), and as shown in the form in the Appendix. p. 489, 491. 8. Of the Agreement to suffer the Recovery.[193] well drawn deed, the agreement In every (p) Supra, 114. [194] to suffer the recovery should be fully and clearly expressed. The common form of this clause is in the Appendix. A short form is also added. The variations in the form, arising from circumstances, are noticed in the notes. 9. Of the Declaration of Uses. To the clause prescribing the mode of suffering the recovery, there is generally added a declaration of the uses of the recovery itself. This declaration should be in the form in the Appendix, or to that effect, mutatis mutandis-It seldom happens, that a declaration of this nature is omitted. When omitted, the use will result (q), unless from the consideration paid by the demandant, or from some other circumstance, the beneficial ownership is evidently to remain with him. The cases of Moxon v. Moxon, and Hodges v. Fowler, in the Exchequer, 1777, and Com. Dig. Uses, D. 2, p. 622, are authorities that the use will result, and it will result to the different parties, according to their former ownership, that is, to tenant for life, for life, &c. &c. with this difference only, that a tenant in tail, instead of taking back an estate-tail (q) Armstrong v. Wolsey, 2 Wils. 19. Jones v. Morley, 1 Ld. Raym. 291. Co. Litt. 23. a; 271. a. by resulting use, will take back an estate in fee, depending on the title to his estate tail. Mr. Cruise, in his Essay on Uses, p. 205, adverts to the title, depending on the resulting use, as doubtful. He assumes, that it is not clear whether the use which [195] results is in tail or in fee. The cases do not admit of any reasonable doubt on this point. Though they say the recovery shall enure to the "former uses (r)," nothing more is meant, than that the parties shall take according to the estates they had at the time of suffering the recovery (s).-Indeed, Mr. Cruise considers the case of Nightingale v. Ferrers (t), as a direct and positive authority, that where a tenant in tail suffers à common recovery without any declaration of the uses, the resulting use is to him in fee.-One, however, of our best read lawyers doubted on this point.-But there were special circumstances in the case before him, namely, a partial declaration of the uses, without any declaration of the use of the fee and on the contrary, a declaration that the recovery should not enure to any other uses. On the same case Mr. Fearne gave an : (r) Waker v. Snow, Palm. 359. 82. (s) Argol v. Cheney, Latch. (t) 3 P. W. 207. |