comes a mere inſtrument or conduit-pipe, ſeiſed only to the uſe of B, C, and D, in ſucceſſive order: which uſe is executed immediately, by force of the ſtatute of uſes[1]. Or, if a fine or recovery be had without any previous ſettlement, and a deed be afterwards made between the parties, declaring the uſes to which the ſame ſhall be applied, this will be equally good, as if it had been expreſſly levied or ſuffered, in conſequence of a deed directing it's operation to thoſe particular uſes. For by ſtatute 4 & 5 Ann. c. 16. indentures to declare the uſes of fines and recoveries, made after the fines and recoveries had and ſuffered, ſhall be good and effectual in law, and the fine and recovery ſhall enure to ſuch uſes, and be eſteemed to be only in truſt, notwithſtanding the ſtatute of frauds 29 Car. II. c. 3. enacts, that all truſts ſhall be declared in writing, at (and not after) the time when ſuch truſts are created.
- ↑ This doctrine may perhaps be more clearly illuſtrated by example. In the deed or marriage ſettlement in the appendix, №. II. §. 2. we may ſuppoſe the lands to have been originally ſettled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reverſion to Cecilia Barker in fee; and now intended to be ſettled to the ſeveral uſes therein expreſſed, viz. of Abraham and Cecilia Barker till the marriage; remainder to John Barker for life; remainder to truſtees to preſerve the contingent remainders; remainder to his widow for life, for her jointure; remainder to other truſtees, for a term of five hundred years; remainder to their firſt and other ſons in tail; remainder to their daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it is neceſſary, in order to bar the eſtate-tail of John Barker, and the remainders expectant thereon, that a recovery be ſuffered of the premiſes; and it is thought proper (for though uſual, it is by no means neceſſary: ſee Forreſter. 167.) that in order to make a good tenant of the freehold, or tenant to the praecipe, during the coverture, a fine ſhould be levied by Abraham, Cecilia, and John Barker; and it is agreed that the recovery itſelf be ſuffered againſt this tenant to the praecipe, who ſhall vouch John Barker, and thereby bar his eſtate-tail; and become tenant of the fee-ſimple by virtue of ſuch recovery: the uſes of which eſtate, ſo acquired, are declared to be thoſe expreſſed in this deed. Accordingly the parties covenant to do theſe ſeveral acts, (ſee pag. viii.) And in conſequence thereof the fine and recovery are had and ſuffered (№. IV. and №. V.) of which this conveyance is a deed to lead the uſes.
