common recovery was had against him with single voucher, and Cr. Jac. 512. executed by Habere facias seisinam 4 Feb. &c. quæ quidem recuperatio in formá præd' habebat', and was to the use of the said Peter for his life without impeachment of waste, and afterwards to the use of his eldest son in tail, and so to the 9th son in seniority in tail, and for want of such issue, to the use of the said Edward Vavasor, brother of the said Peter, for his life, without impeachment of waste, and afterwards to the use of his eldest son, and to the heirs males of his body, and so to the 9th son in their seniority of the like estate; and for want of such issue, to the use of the said George Vavasor, Ralph Vavasor, Mark Vavasor, Robert Vavasor, Thomas Vavasor, and Richard Vavasor, brothers of the said Peter, to every of them the like estate, with like remainders to their ninth issue male, in their seniority in tail; and afterwards to the use of the heirs males of Peter Vavasor, Knight, lawfully begotten; and afterwards to the use of [*8 a.] the right heirs of the said Richard Vavasor, and alledged the

*

212.

execution of the uses by force of the statute of 27 H. 8. and the 27 H. 8. cap. death of the said Peter Vavasor without issue; after whose death 10. he entered as in his remainder, and gave colour to the plaintiffs. To which the plaintiff replied and confessed the recovery, as the said Edward had alledged, but further said, that the said recovery was to the use of the said Peter and his heirs, and that after the death of Peter the tenements descended to the said Elizabeth wife of the said Thomas Dowman, as sister and heir of the said Peter, &c. absque hoc, quod recuperatio prædicta tenementorum præd, &c. in formá prædictá habitá, fuit ad usus in barrâ prædict' Edwardi superius specificat', prout, &c. And thereupon issue was joined, and it was found by the recognitors of the assise, that the said Peter being seised in fee suffered the said recovery + of † Rep. Q. A. the tenements aforesaid, as the said Edward had alledged; and further the recognitors of the assise said, quod quædam indentura facta fuit inter præfať Petrum Vavasor & præd' Andream Winsor and others, the recoverors, of the other part, cujus tenor sequitur in hæc verba; which indenture bears date primo die Februarii anno 15 El. regina, and witnesseth, "That it is covenanted, "concluded, condescended, declared, and fully agreed between "the said parties, and either of the said parties, for himself and "his and their heirs, doth conclude, condescend, declare, and agree by these presents to and with the other, that is to say, "whereas the said Andrew, &c. have this present term of St. Hilary recovered to them and their heirs by writ of Entrie sur dis"seisin in le post, against the said Peter Vavasor, according to "the usual order and form of common recoveries heretofore "used, the manor of Spaldington, &c. that the intent and true " meaning of all the said parties now is, and, at the time of the "said recovery had and suffered, was, that the said recoverors "and their heirs immediately from and after the recovery So had " and executed should and shall stand and be seised of the said manor, &c. to the only uses and intents hereafter by these "presents set forth and declared, and to no other uses, intents, "and purposes, that is to say", and declares and expresses the same uses mentioned and alledged in the bar of the said Edward Vavasor, without any variance. And farther the said recogni

tors of assise found, that the tenements now put in view were, &c. parcel of the said manor of Spaldington, sed utrum indentura præd' post recuperationem præd' per præfat' Petrum Vavasor Armig' in formá præed' fact' & habit ger dať pred primo die Fe[* 8 b.] bruarii ac prim' deliberať 15 die Februarii anno 15 *supradict post recuperationem præd' existen' ad usus in eadem specific' sit bona & sufficiens in lege ad ducendos & declarandos usus præd' recuperationis præd tenementorum in visu recognitorum posiť & in querelá præd' specific' necne iidem recognitores penitus ignorant, & inde petunt advisamentum Justic' & cur' hic, & si videbitur curiæ, that the said indenture is good and sufficient, &c. Then they found that the said recovery of the tenements aforesaid was to the same uses in the bar of the said Edward Vavasor, as the said Edward had alledged; and that the other defendants had done no wrong nor disseisin and if the said indenture is not good and sufficient, &c. then they found against all the defendants. And for dif ficulty the said Justices of assise did adjourn the parties and the record before the Justices of the Common Pleas, de audiendo & recipiendo quod iisdem Justiciar' dominæ Regina de præd Banco adtunc & ibid' considerand' videbitur in hac parte. And in this case two questions were moved and argued by the Serjeants, at the bar. ¶ 1. If the said indenture made after the said recovery, was sufficient in law to direct and declare the uses of the said precedent recovery? ¶ 2. If upon a special point in issue upon an absque hoc, the recognitors of assise could give a special 1st Objection. verdict. And as to the first it was argued, that the said indenture was not sufficient to declare and direct the uses of the said precedent recovery, for 5 reasons and causes. 1. When a recovery is suffered (it being without consideration) immediately after the recovery the law adjudges it to be to the use of him who suffers the recovery and his heirs: then when the use in the case at bar was vested in Peter Vavasor immediately after the recovery executed, before the said indentures made, this use so vested cannot be divested by any declaration or agreement subsequent; and the deed indented shall not conclude the heir in this case, because it being subsequent, cannot by the law divest that which was vested immediately after the recovery had. And to this purpose they cited the books in (a) 39 Ass. p. 3. & 46 E. 3, Assise 357. where an infant brought an assise against T. of certain land, the defendant said that J. uncle of the infant, whose heir he is, held the said land of him by homage, escuage, and four marks rent, and died seised; and because the plaintiff was within age, he seised the tenements by reason of wardship: to which the plaintiff said that the said J. held in socage, &c. to which T. the defendant said, to say that you shall not be admitted, for the said J. your uncle upon a debate betwixt us acknowledged to hold the same land of us by such services by deed indented; and demanded judgment, if he shall be received to say the contrary [* 9 a.] *and shewed the deed, &c. and that case for difficulty was adjourned into this court, and there it was adjudged that the said acknowledgment or declaration by deed indented should not conclude the heir of J. and the reason of Thorp, Chief Justice, who gave the judgment, was, because by the deed indented,

(a) Postea 10. b. Fitz. Assise

334.

Co. 54. a.

a. b. 82. b. Co.

other services could not be granted, which were not due before, wherefore take the assise. So in this case at bar the deed indented subsequent shall not conclude the heir of Peter Vavasor, because it cannot devest the use, which was by operation of law (a) Br. Estopvested immediately after the recovery: and they also cited 35 H. pel 23. Fitz. 6. 33. b. John (a) Crook's case, where the like acknowledg. Estop. 57. 8 ment by deed indented was made, &c. and estoppel pleaded; Plowd. 136. a. and it was adjudged, that the declaration by deed indented, for b. Hob. 31. the certainty of the services should not bind the heir of the te- Co. Lit. 12. a. nant, who was party to the said deed indented. Secondly, it Secondly, it 2nd Objection. was objected, that every declaration of uses upon recoveries, fines, &c. of lands, tenements and hereditaments, ought to be † † Postea 10. b. certain (otherwise there will be no certainty of inheritances) and this certainty ought to be chiefly in three things, sc. in persons to whom; in lands, &c. of which, and in estates by which uses shall be limited and declared; and if certainty fails in any of them, the declaration is not sufficient. But here in the case at the bar, there was not any of these certainties, when the recovery was suffered; and therefore the declaration subsequent insufficient, Oportet quòd certa persona, certæ terræ, &c. et certi status comprehendantur in declaratione usuum. The third ob- 3rd Objection. jection was, that the limitation and declaration of the uses ought (6) 11 Co. 83. to be compleat of itself, without any reference to indentures or Lit. 220. a. other writings to be made afterwards, for then it is but an im- Postea 10. b. perfect communication, and no compleat declaration (A): and Moor 317. 327. that it was but a communication they alledged three reasons; Co. 23. a. b. 1. That the uses were many, and of great variety of estates. 2. 82. a. 4 Co. 63. That it concerned the establishment of his inheritance of a great yearly value in his name and family, and therefore the intention of the parties never was to leave it to the sliding and slippery memory of men, which would be lost in a short time, and especially when the said Elizabeth (one of the plaintiffs) was his sister and heir, before whom he preferred others of his name and blood. 3. Several of the uses and estates could not be limited with such qualities and privileges by word without deed, as the use limited to the said Peter Vavasor (and to divers others) for life, without (b) impeachment of waste, which privilege to be dispunishable of waste, none can have by word without deed; and therefore all the words which passed betwixt the parties before, or at the time of the recovery, were referred to indentures * to be made thereof, and so but a communication, and no compleat agreement: Quia id perfectum est quod ex omnibus suis partibus constat, et nihil perfectum est dum aliquid restat agendum. 19 H. 6. 63. b. 10 H. 7. 3. a. 16 H. 7. 4. b. Poph. 193, 194, 195. 8 Co. 76. b. Br. Waste 71. Latch.

269.

The 4th objection was, that the said indenture was but directory, and declaratory of the uses of the recovery, and was not of any force to raise or create any use: then when the issue is, whether the said recovery was suffered to the said uses mentioned in the bar, the said indenture subsequent might peradventure be good evi

(A) This proposition must be understood with considerable qualification; for it is clear that a declaration that a fine, &c. shall enure

2 Inst. 146. 2

a.

pl.

Dy. 10. Bridgm. 102. Hob. 132.Hetl. 77.1 Roll. Rep. 182, 183. 2

Roll. Rep. 325.

2 Leo

Leon. 225. Leon. 71. Co.

El. 40, 41. Plowd. 135. b. 35. a. Fitz. Waste 39.1 H. 7.15. a. 21 H.

141. a. 9 H. 6.

6. 47. a. 20 H.

[* 9 b. ] 7.4. a. 22 H.7. 24. a. 31. a.

1 Bulstr. 136. Park.sect.721.

4th Objection. Postea 11.a. b.

to such uses as A. shall hereafter appoint, or shall hereafter declare, will be good. Prest. Shep. Touch. 519.

dence to persuade the recognitors of the assize, that the said recovery was suffered to the said uses, but of itself being subsequent to the recovery it is not sufficient in law to direct the uses of the precedent recovery, unless by the agreement of the parties the uses were so declared before, or at the time of the recovery, and then the declaration precedent, and not that which was subsequent, is the declaration which binds in law, and the subsequent is but evidence to prove the precedent: and therefore if the said Edward Vavasor had pleaded the said recovery, and pleaded also the indenture subsequent to the effect as the recognitors have found it, that would be altogether insufficient, for the indenture subsequent is but the report and evidence of a former thing, sc." that the true meaning of all the said parties, &c. at the time of the said recovery, &c. was, that the said recoverors, &c." and evidence shall never be pleaded, because it tends to prove matter in fact; and therefore the matter in fact shall be pleaded (B); and if that is denied, the evidence is to be given to the jury, and not to the court. And therefore in 9 E. 3. 5. b. and 6. a. John Darcy brought a Quare impedit against the bishop of Durham, of a disturbance to present to the church of Simondsbury, and declared that king Edward 2. was seised of the manor of Wreckes in Tindale to which the advowson is appendant, and presented, &c. and made the descent of the manor to the king that now is, who gave the manor, with the fees and advowsons to the plaintiff and his heirs, &c. to which the defendant said, that the advowson is not appendant to the manor, &c. to which the plaintiff replied, that to this averment the defendant should not come, for we say, that one Edward late king of Scotland, was seised of the manor of Wreckes, and of the advowson, and presented to the church as appendant, and shewed how afterwards the manor came to the hands of king Edward the grandfather by forfeiture of John Baliol, and shewed how afterwards the Kings presented as appendant to the manor, wherefore the plaintiff did not conceive that against so many presentments as appendant, that the defendant should be received to say that the advowson is not appendant. And Sir William Herle, [*10 a.] who gave the rule said, the presentments of which you speak are but evidence to the jury that the advowson is appendant, 5th Objection. and evidence shall not oust the defendant of his plea. The fifth and last objection was, that if these declarations subsequent should be sufficient in law to declare the uses of a precedent recovery, forasmuch as they will be restrained to no certain time, and therefore may be made many years after, by that means, estates, leases, and interests in and out of the lands vested in the mean time would be thereby defeated, which would be full of mischief and inconvenience. And the case of Arthur (a) Basset, which you may see reported by the Lord Dyer, 3 & 4 Ph. & Ma. 136. that indentures made four years after a recovery were held sufficient to declare the uses of a precedent recovery, was agreed to be good law; for in the said case of Basset the reco

(a) 2 Roll. 782. Jenk. Cent. 212. Dy. 136. pl. 17, &c.

(B) So also in special verdicts, and in special cases for the opinion of the court, facts must be stated, and not merely the evidence of

facts, Rex v. Huggins, 2 L. Raym. 1581. S. C. Strange 885. Butts v. Bilke, 4 Price, 240. Palmer v. Johnson, 2 Wils. 163.

The uses of the indenture are sufficient subsequent, to declare the uses of the precedent recovery.

48. Moor 192.

very was suffered in 16 H. 7. and the indentures made anno 20 H. 7. (which was long before the statute of transferring of uses into possession), at which time an use being but a thing in confidence might be directed and altered, according to the intention of the parties. And after the case had been often argued by the Serjeants at the bar, the case was argued by the Justices at the bench. And it was unanimously resolved by all the Justices of the bench, that the said indenture (a) subsequent (c) was sufficient to direct and declare the uses of the precedent recovery against the said Peter Vavasor and his heirs, for so it is concluded and declared by the deed indented, that the intent and true meaning of all the parties now is "and at the time of the said recovery was, that the said recoverors, &c. should stand seised, &c. to the only uses and intents by these presents set (a) Hutt. Arg. forth and declared, and to no other use, intent, or purpose." 2 Roll. Rep. Against which express affirmation and declaration by deed in- 561. 1 Vent. dented, the said Peter or his heirs shall never be admitted or received to say, that no such uses were declared at the time of the said recovery, but that the said recovery, notwithstanding the said subsequent declaration, shall be construed and adjudged by force of an use implied by operation of law, to be to the use of the said Peter and his heirs: but this declaration by the said deed indented has this operation in law against the said Peter and his heirs, that there was a present, certain, and compleat agreement and declaration of the said uses at the time of the said recovery, for so the indenture expressly purports; and therefore all that has been objected, that the declaration ought to be precedent, or present and (b) certain and compleat, and not as a (b) Ant. 9. a. communication with reference to matter to be put in writing afterward was well agreed; but now this deed indented in judg

368. Postea 11.

b. Cr. Jac. 512.

ment of law doth import and witness against the said Peter [* 10 b. ] Vavasor and his heirs, forasmuch as nothing appears to the contrary, that there was a certain and compleat declaration of uses at the time of the said recovery, and this stands upon pregnant and apparent reason; for inasmuch as Peter and his heirs are only to take advantage for want of declaration of uses, reason requires, that this declaration of the said Peter by his deed indented should stand against him and his heirs: and this case is not like the said cases in (c) 39 Ass. & 46 E. 3. cited before; for in (c) 39 Ass. 3. such case, if the lands were held before in socage, the tenant pl. 3. 46 E. 3. could not create or grant knight's service, which was not due be- Assize 357. fore; and in the record the infant was not made heir to J. But here without question Peter Vavasor the tenant of the land might at the time of the recovery limit what uses he would, and

(c) After the stat. 29 Car. II. c. 3. § 7. by which it is enacted, that all declarations of trusts or confidences of any lands, &c. shall be manifested and proved by some writing signed by the party, &c. ; a doubt arose whether the resulting use of a fine or recovery could be defeated by a subsequent declaration. The stat. Ann c. 16. after reciting the doubt, enacts, that the uses of the fine or recovery may be subsequently declared by deed. Since

VOL. V.

Antea 8. b.

this last statute, it has been doubted, whether the word "deed" in the statute does not mean "deed indented"; and it has also been said, that it is by no means clear that the common law did not require the circumstance of indenting, 2 Prest. Conv. 41.; but both these positions appear to be satisfactorily combated by Mr. Sugden, note 1. Gilbert on Uses, 62. Vid. note (B) Countess of Rutland's case, vol. 1, p. 52.

C