riage (a). Myddleton v. Lord Kenyon (b) was not a decision on stat. 27 Eliz. c. 4., and is inapplicable here. In Scot v. Bell (c) the lands newly settled, in consideration (as was held) of the wife's concurrence, were limited to the uses of the old marriage settlement. In Osgood v. Strode (d) the limitation which was held good was considered to be the real object of the transaction between the parties, and was upheld against the heirs and devisees of the parties. In Hill v. The Bishop of Exeter (e), where the release of an adverse claim was held to be a good consideration, the party releasing took the benefit which was contemplated; and the limitation to him was therefore upheld against a grant made to the releasor's son in consideration of natural love and affection. In the present case, the limitation has an effect which could not have been contemplated as to either moiety. With respect to Hinton's moiety, the intention clearly was, in pursuance of the deed of 9th October 1769, to sell the land absolutely and invest the proceeds in other estates, to be limited to the same uses as those in the deed of 9th October 1769. And, as to Betts's moiety also, the intention of the parties evidently was that it should be dealt with in the same way as the other moiety; and, in this case also, an absolute sale must have been contemplated by Hinton and James and Jane Baverstock, who, among them, had the whole interest. The first recovery of 16th May 1778 must, for the purpose of the present question, be treated as forming one conveyance with those by which it was followed (a) See remarks on this case, 3 Sugd. V. & P. 291. (10th ed.). 1838. Doɛ dem. BAVERSTOCK against ROLFE. 1838. DoE dem. against ROLFE. up, according to the principle of Selwyn v. Selwyn (a), Roe dem. Noden v. Griffits (b), and Doe dem. Odiarne v. BAVERSTOCK Whitehead (c). In Pulvertoft v. Pulvertoft (d) the Court of Chancery refused to restrain parties from a sale which went to defeat the limitations of a voluntary conveyance. Buckle v. Mitchell (e) goes further still. There Sir William Grant M. R. decreed a specific performance, against the parties claiming under a voluntary settlement, in favour of a purchaser with notice. Cur. adv. vult. Lord DENMAN C. J., in the ensuing term, mentioned this case, and said that the Court wished it to be reargued by one counsel on each side, as to the following point. John Hinton being tenant for life, remainder to Mrs. Baverstock in tail, remainder to John Hinton in fee, a surrender is made and recovery suffered (16th May 1778) to the use of John Hinton for life, remainder to the use of Mrs. Baverstock for life, remainder to the use of the right heirs of the survivor. The lessor of the plaintiff is heir to the survivor, and also issue in tail. If that recovery be void, he is entitled as issue in tail, because his mother's estate tail was never barred; if that recovery and the uses of it stand good, he is entitled as heir to the survivor, because the contingent remainder could not pass to Letch. Therefore, to entitle the defendant to a verdict, it must be shewn that the recovery is good so as to bar the entail, and yet the uses void. (a) 2 Burr. 1131. See (d) 18 Ves. 84. Accordingly, Accordingly, the case was further argued in Easter term 1838 (a). C.R. Turner for the plaintiff. [Patteson J. Supposing the declared uses to be void, can the recovery stand? And, if the recovery fails with the uses, the tenancy in tail remains.] If no uses were declared of which the Court can take notice, the recovery is ineffectual, and there is no fee simple. [Patteson J. Is there any authority to shew whether, where uses have actually been declared, which prove void, the whole conveyance is avoided?] In Fitzjames v. Moys (b) tenant in tail suffered a recovery and declared the use by deed to his cousin (through whom plaintiff claimed) and her heirs after his death; afterwards he sold the lands to another cousin, the defendant, for 1000l., without notice of the first conveyance, and, on a trial at bar, the Court said that the first conveyance might be fraudulent within the statute of Elizabeth, and it was so found. [Patteson J. Was any person party to that suit, who could have taken under the entail? If nothing is stated on that subject, it does not appear that the defendant may not have had sufficient title, although no valid recovery had been suffered.] It is sufficient for the lessor of the plaintiff here to stand upon the uses declared. The recovery and surrender to uses constitute one entire conveyance; Stevens dem. Costard v. Winning (c), 5 Cruise's Dig. 461, 4th ed. If therefore the conveyance stands good, its operation will be determined by the intention of the parties, as disclosed by the deed of uses. If the (a) May 4th. Before Lord Denman C. J., Patteson and Coleridge Js. 1838. Doɛ dem. BAVERSTOCK against ROLFE. 1838. Dos dem. against ROLFE. uses are void, the Court will not suppose a resulting use which would supersede the expressed ones, and the BAVERSTOCK clear intention. The conveyance is wholly good, or wholly void. But the uses are good at law; though, if the parties have declared such uses that a sale cannot be effected, that may be a ground for applying to a court of equity. Spankie Serjt. contrà. The declaration of void uses does not make the recovery invalid for the purpose of giving title to the defendant. The statute of Elizabeth renders fraudulent conveyances void only as against those who may be prejudiced by them; it does not alter the law in other respects, as between the parties to the conveyance. Many authorities shew that a deed may be good for some purposes, though bad for others; Pigot's case (a); 1 Shepp. Touchst. 71. c. 4. 8th ed.; Greenwood v. Bishop of London (b); Doe dem. Thompson v. Pitcher (c); Winchcombe v. Bishop of Winchester (d); Anonymous case in Style (e); Veale v. Priour (g); in which last three cases fraudulent conveyances are expressly adverted to. The recovery is independent of the declaration of uses; it is from the recovery that the uses are to arise; and, if none or void ones only are declared, a fee-simple results to the tenant in tail. Lee C. J. says, in Martin dem. Tregonwell v. Strachan (h), " An absolute, unfettered, pure fee-simple passes by the common recovery;" "it is this use of the fee-simple that passes to the recoveror from the tenant in tail, and which (a) 11 Rep. 27 b. (c) 6 Taunt. 359. (e) Style, 428. (b) 5 Taunt. 727. (d) Hob. 166. (5th ed.). (h) Note (b) to Roe dem. Crow v. Baldwere. 5 T. R. 110. results results to him and his heis if no use is declared." 1838. DoE dem. against ROLFE. [Patteson J. If the recover or takes the estate independently of the declaration of uses, it would appear BAVERSTOCK that the nominal recoveror would have the legal estate]. The use would result according to the actual interests of the parties. And in Fearne, Cont. Rem. 48. it is laid down (referring to Co. Litt. 22 b, 23 a.) that "in a conveyance to uses without valuable consideration, so much of the use as is not disposed of remains in the grantor." The recovery therefore, in the present case, would take its effect out of the resulting use, regulated by the interest remaining in the grantor. In Gilbert on Uses, 119. (a), 3d (Sugden's) ed., it is said that, "if a man seised of lands in tail, levies a fine, or suffers a recovery, and declares no uses, the use results to the tenant in tail, and he becomes seised in fee by virtue of the recovery, because the recoveror is tenant in fee." Com. Dig. Uses (D 2.) also states the doctrine on this subject. And in 1 Preston on Conveyancing, 196, 3d ed., the author cites the following opinion given by Mr. Fearne. "I conceive that where a tenant in tail is vouched in a common recovery, it bars the estate tail, and all remainders and reversions thereon depending and expectant, and expands the estate into a fee-simple, abstracted from the declaration of the uses of such recovery, because a fee-simple is recovered. And therefore where no use of the fee is declared in such a case, and there is no consideration to raise the use in the recoveror, it results to the tenant in tail in fee, 2 Roll. Abr. 789. pl. 1., Godbolt, 180. Bury v. Taylor (b). Gilb. Law of Uses, (a) Page 64. of 1st ed. (b) See Beckwith's Case, 2 Rep. 56 b, there cited. |