several declarations precedent, attended with equal solemnities, the latter declaration will be effectual; as between several declarations subsequent, though attended with equal solemnities, the former of these declarations will govern the title.

Of declarations of uses in conveyances which pass an estate, to serve the uses, or which are ancillary to the assurance on which the uses are to arise.

When there is merely an executory agreement, and no conveyance, the party retains his ownership. The power of alienation remains in him, subject only to the agreement, as far as that agreement can operate.

After a conveyance has been made to uses, orto the intent that a common recovery shall be suffered or a fine levied to uses, the seisin oro wnership is changed; a new title is created governed by this conveyance, and the former owner has no longer the power of varying the uses. It is a principle of law, that a man cannot derogate from his own act. Another rule more material to this point is, quod meum est, sine facto sive defectu meo, amitti, vel in alium transferri non potest; and of consequence, the interest acquired by third persons cannot be abridged or defeated without their concurrence.

Suppose tenant in tail to convey in fee to uses; this settlement is good against himself. It is voidable only, and not void,

as against his issue. It is in the option of the tenant in tail, whether he will levy a fine or suffer a common recovery, to give confirmation to the title under this conveyance; but in case he levies a fine, or suffers a common recovery, he has no power, except so far as he may retain an estate or interest under the former conveyance, to direct the uses of such fine or recovery. By a necessary consequence of law, the fine or recovery will have the effect of giving confirmation to the former conveyance, even in opposition to the intention of the parties to the fine or recovery, (d) as existing at the date of the fine or re

covery.

The operation of a fine with proclamations will be to bar the issue, and render the conveyance indefeasible by them. A common recovery, if duly suffered, will have the more extensive operation of confirming the conveyance as against the issue in tail, and also against those in remainder or reversion expectant on the estate tail, and all other persons who have any interest by way of condition or collateral limitation subordinate to the estate tail.(e) Nor is the rule confined to conveyances by tenants in tail; it is equally applicable to all estates, whether the conveyance is made by tenant for life, tenant in

(d) Goodright v. Mead, 3 Burr. 1703. Cheney v. Hall, Ambl. 526.

Stapilton v. Stapilton, 1 Atk: 2.

(e) See Chapter on Common Recoveries, in Vol. 1.

tail, or tenant in fee; notwithstanding the decided cases have, for the most part, arisen on conveyances by tenants in tail. And the rule equally extends to give confirmation to particular interests, as leases, grants for life, rent-charges, and the like, when they are prior to the fine, or recovery: and the recovery is duly suffered. In cases of this sort, the right is bound by the conveyance; an interest is acquired; and, in application to these particular instances, it is perfectly correct, that the use cannot be altered or varied, even while it is executory, without the consent of all persons concerned in interest. With their consent, in an instrument equally solemn with the instrument by which the uses were originally created, no doubt can be entertained of the right to alter or vary the former uses, and to add or substitute other uses. This necessarily flows from the principle, that unum quodque dissolvi potest, eodem ligamine quo ligatum est. This distinction, however, must be kept in mind, that when there is a conveyance to uses, so that the uses are immediately executed by the statute, it is no longer competent to the parties to vary the title merely by an agreement or declaration of uses. There must be a new conveyance, or there must be a bargain and sale, or covenant to stand seised, creating uses to arise from the seisin of the person, who under the former uses takes a vested estate.

For example: when A. conveys to B. in fee, to the use of B. or C. for life, with remainder to D. in tail or in fee, each cestui que use has immediately a vested estate, and no change can be made in his ownership by an attempt to declare other uses, even with his consent, An estate of freehold once vested, cannot be defeazanced or avoided by an executory agreement. There must either be a surrender or conveyance of particular estates, or a new conveyance, bargain and sale, or covenant to stand seised of other estates. This is equally true, although there may be in the conveyance, a covenant to levy a fine or suffer a common recovery, with a declaration that the same shall enure to the uses limited by the conveyance. Notwithstanding such covenant or agreement, the conveyance has performed its office of raising the uses, and, by force of the conveyance, they become actual estates. The operation of such conveyances is not suspended, so as to give executory interests by reason of the subsequent covenant, agreement, or declaration. But when a conveyance is made to A. and his heirs, to the intent that a common recovery shall be suffered, or fine shall be levied, with a declaration that this recovery when suffered, or fine when levied, shall enure to certain uses; these uses will in the mean time, till the recovery is suffered, or the fine is

levied, remain in an executory state, andwhile the uses are executory, they may be defeazanced, altered, or varied, (f) by the agreement of all persons concerned in interest: and by the persons cencerned in interest, must, it is apprehended, be understood the persons who are to be benefited by the uses, and not the conusee, demandant or tenant, merely as such. These observations will shew the full force of the distinctions which prevailed in Goddard v. Complin,(g) Stapilton v. Stapilton, (h) Moody v. Moody, (i) Cheney v. Hall,(j) and Goodright v. Meade. (k) As these cases involve a large portion of useful learning, they will be stated, as far as they are material to the points now under consideration. In Goddard v. Complin, "Tenant in tail • mortgaged for years, and afterwards upon marriage, in consideration thereof suffered a recovery to settle a jointure; and the "question was, whether this recovery should enure to make good the mortgage, it being designed for the marriage settlement only? "And it was answered, if no recovery had been, there could have been no jointure, " and the jointress could not have avoided

66

166

(f) Andrews' Case, Moore, 107. pl. 349

(g) 1 Ch. Cas. 119.

(h) 1 Atk. 2.

(2) Ambl. 649.

(j) Ambl. 526.

(4) 3 Burr. 1703.