OF DEEDS TO LEAD, AND DEEDS TO DECLARE, THE books abound with various distinctions, concerning the declaration of the uses of fines, recoveries, and other assurances. Some of these distinctions relate more immediately to agreements for fines to be levied, recoveries to be suffered, and the like; while others relate to deeds, declaring the uses of fines already levied, recoveries already suffered, or conveyances already made. Cases of the former description relate to that species of assurance, which is usually denominated a deed to lead the uses of a fine, &c.; and cases of the latter description relate to those deeds which are generally, and properly, styled deeds to declare the uses of fines, &c. There is a third species of assurance, partaking partly of the naturè of a deed to lead, and partly of the nature of a deed to declare, the uses of a fine, &c. as a conveyance made to the intent that a common recovery shall be suffered to uses; and it is to be lamented, that many treatises, valuable for the information they afford, have not adverted to this species of assurance, as governed by other rules than deeds to lead the uses of fines, &c. Without understanding the precise nature of these several assurances, the rules of law by which they are governed, and the distinctions to which they give rise; it will not be easy to comprehend the books that treat of these subjects. No use can arise in any deed operating at the common law, unless an estate of freehold is transferred, to supply a seisin to these uses. A fine or recovery must operate as a conveyance of an estate of freehold, as a preliminary step to a declaration of uses. As far as it is merely a release of right, or confirmation of title, no uses can be declared with effect, because no seisin passes; and as often as the fine operates on the equitable right, the uses which are declared will only govern the equitable title, by varying or modifying that title. These uses will not have any influence on the legal estate, except so far as they charge that estate by way of trust. A deed to lead the uses of a fine or recovery, is not a conveyance of itself: it has no individual, or immediate operation on the seisin, or estate: it is merely a Covenant or agreement to levy a fine, or suffer a common recovery; with a declaration, that the fine when levied, or recovery when suffered, shall enure to certain uses. This deed, and the fine when levied, or recovery when suffered, will operate as part of the same assurance (a). No estate passes till the fine is levied or recovery suffered; and in the mean time, no uses can arise for want of a seisin to supply or feed these uses. 2dly. A declaration of uses supposes, as the fact really is, the fine to be levied, or recovery to be suffered. Of course, the seisin has passed to the conusee in the fine, or the demandant in the recovery; and the uses remain in a dormant and inefficient state, for want of a direction giving them a definitive object. Till by the declaration, the uses are called into operation, they will result to the former owner, or respective owners, according to the former ownership of the person, or those several persons, in such manner as has been noticed in the former volume (6). A long interval, even of many years (c), may (a) Stapilton and Stapilton, 1 Atk. 5.; and see 2 Lev, 54, Ferrers and Curson v. Fermor and others, Cro.Jac.643. Herring v. Brown, Ventris, 368, 371. Doe ex dem. Odiarne v. Whitehead, 2 Burr. 701. (b) Page. (c) Altham v. Anglesey, Gilb. Eq. Cases, 16. elapse before this declaration is executed. From the moment the declaration is executed, the seisin will be bound with the uses, and these uses will arise from the seisin, transferred to the conusee in the fine, or demandant in the recovery; and not from that seisin which the former owner takes by way of resulting use. The seisin under that use cannot be transferred without a formal conveyance adapted to the circumstances of the estate of the party; while the seisin, transferred to the conusee in the fine, or the demandant in the recovery, may be affected and bound merely by a declaration of uses to arise out of that seisin. 3dly. In this species of assurance, a seisin or estate passes by the operation of the conveyance; the estate itself is transferred. Sometimes uses are declared, so as to arise inmediately, as in Stupiiton and Stapilton (d).* In other instances, the conveyance is merely to the intent that a fine shall be levied, or a common recovery shall be suffered, and uses are directed to arise, out of the seisin of the conusee in the fine, or the demandant in the recovery. Although the conveyance is made, and the fine is to be levied, to one and the same person; and although the fine and the conveyance, or the conveyance and the re 、 (d) 1 Atk. 2. |