Therefore it is to be seen in what cases the same person shall be both seised to the use and cestui que use, and yet in by the statute; and in what cases they shall be diverse persons, and yet in by the common law. Wherein I observe unto you three things: First, that the letter is full in the point: secondly, that it is strongly urged by the clause of joint estates following: thirdly, that the whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate. Therefore the statute ought to be expounded that, where the party seised to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law.

As, if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, then to the use of I. D. and his heirs; I. S. is in by the common law, and not by the statute. Like law it is, if I give land to I. S. and his heirs, to the use of himself for life, or for years, and then to the use of I. D. or his heirs; I. S. is in of an estate for life, or for years, by way of abridgment of estate, in course of possession, and I. D. in of the fee-simple by the statute.

So if I bargain and sell my land after seven years; the inheritance of the use only passeth, and there remains in me an estate for years by a kind of subtraction of the inheritance or recouper1 of my estate, but merely at the common law.

But if I infeoff I. S. to the use of himself in tail and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and then to the use of my wife in fee; in both these cases the estate tail is executed by the statute: because an estate tail cannot be recouped out of a fee-simple, being a new estate and not like a particular estate for life or years, which are but portions of the absolute fee. And therefore if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail to me, nor vesteth any present fee in the bargainee, but is an use expectant.

So if I infeoff I. S. to the use of I. D. for life and then to the use of himself and his heirs, he is in of the fee-simple merely in course of possession at common law, and as of a reversion, and not of a remainder.

1 So MSS.

The Editions have "occupation," and below "re-occupy."

Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself for life, the remainder to the use of I. N. in fee: now the law will not admit fraction of estates; but I. S. is in with the rest by the statute.

So if I infeoff I. S. to the use of himself and a stranger; they shall be both in by the statute, because they could not take jointly, taking by several titles.

Like law, if I infeoff a bishop and his heirs to the use of himself and his successors, he is in by the statute in right of his see. And as I cannot raise a present use to one out of his own seisin; so if I limit a contingent or future use to one being at the time of limitation not seised, but after [he] becometh seised, at the time of the execution of the contingent use it is the same reason and the same law, and upon the same difference which I have put before.

As, if I covenant with my son that after his marriage I will stand seised of land to the use of himself and his heirs, and before marriage I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute. Like law of a bargain and sale. But if I had let to him for life only, then he should have been in for life only by the common law, and of the fee-simple by the statute.

Now let me advise you of this, that it is not a matter of subtlety or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the statute in course of use; but it is material for the deciding of many cases and questions; as for warranties, actions, conditions, waivers, suspensions, and divers other purposes.

For example; a man's farmer committeth waste; after, he in reversion covenanteth to stand seised to the use of his wife. for life, and after to the use of himself and his heirs; his wife dies: if he be in of his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it.

So, if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of myself for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; if by the common law, it is doubtful.

So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee. I. S. dieth. If I be in by the common law, I cannot waive my estate, having agreed to the feoffinent; but if

What persons may limit and declare an use.

I be in by the statute, yet I am not remitted, because I am come in by my own act; but I may waive my use, and bring an action presently for my right is saved unto me by one of the savings in the statute.

Now on the other side it is to be seen, where there is a seisin to the use of another person, and yet it is out of the statute: which is in special cases upon this ground; wheresoever cestui que use had remedy for the possession by course of common law, there the statute never worketh. And therefore, if a disseisin were committed to an use, it is in him by the common law upon agreement. So if one enter as occupant to the use of another, it is in him till disagreement.

So if a feme infeoff a man causâ matrimonii prælocuti, she hath remedy for the land again by course of law.

And therefore in those special cases the statute worketh not. And yet the words of the statute are general, "where any person stands seised by force of any fine, recovery, feoffment, bargain and sale, agreement or otherwise" but yet the sense is to be restrained for the reason aforesaid.

use.

It remaineth to show what persons may limit and declare an Wherein we must distinguish: for there are two kinds of declarations of uses; the one of a present use upon the first conveyance, the other upon a power of revocation or new declaration; the latter of which I refer to the division of revocation : now for the former.

The King upon his letters patent may declare an use; though the patent itself implieth an use, if none be declared.

If the King give lands by his letters patent to I. S. and his heirs to the use of I. S. for life, the King hath the inheritance of the use by implication of the patent; and no office needeth, for implication out of matter of record amounteth ever to matter of record.

If the Queen gave land to I. S. and his heirs to the use of the churchwardens of the church of Dale, the patentee is seised to his own use upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII. c. 10. and the use had returned to the feoffor and his heir.

A corporation may take an use without deed, as hath been said before; but can limit no use without deed.

An infant may limit an use upon a feoffment, fine, or recovery; and he cannot countermand or avoid the use, except he avoid the conveyance.

Contrary law if an infant covenant in consideration of blood or marriage to stand seised to an use, the use is merely void.

If an infant bargain and sell his land for commons or teaching, it is good with an averment. If for money, otherwise; if it be paid it is voidable; if for money recited and not paid, it is void: and yet in the case of a man of full age the recital sufficeth.

case, 2 Co. 56.

If baron and feme be seised in right of the feme, or by joint Beckwith's purchase during the coverture, and they join in a fine; the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone, but the use goeth according to the limitation of law unto the feme and her heirs but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance as they concur in; for that the law accounteth all one, as if they joined.

As, if the baron declare an use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs, the use is good to I. S. in fee.

And if upon examination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law.

3 But if the husband discontinue the wife's land; although the feme join with him by deed, yet the husband's declaration is good of the inheritance.

When divers in remainder join with the tenant of the freehold in a lawful conveyance wherein all remainders do concur, and they sever in declaration of the use, every man's declaration shall be good for his own estate. But if they do not all concur that have estate, but that the conveyance is tortious in any part, then the declaration of the tenant of the freehold is only good. As, if tenant for life be, the remainder in tail, the remainder in fee; and they join in a fine and declare uses severally; tenant for life to I. S., tenant in tail to I. D., and

I have omitted the words "for money," which are in all editions and MSS. I

have seen.

2 So Harl. MS. 829. for the common reading "proved."

3 From here to the end is taken from Harl. MS. 829. f. 140 b. It appears never to have been printed.

tenant in fee to I. N.: I. S. hath pour vie of the tenant for life, I. D. hath to his heirs as long as tenant in tail hath heirs of his body, and I. N. hath the absolute fee.

Contrary law, if tenant for life or in tail and he in the remainder in tail join in a fine without him in the remainder in fee, and tenant in possession declareth to I. S. and tenant in remainder to I. D.: I. S.' hath the whole fee simple; and it shall not enure by way of declaration of use of several moieties, as if they had been jointly seised.

So, if tenant in possession and he in the remainder in fee join in a fine, where there is a mean remainder in tail who joineth not, and they sever in declaration; the tenant in possession's declaration is good only.

So, if tenant in tail suffer a common recovery, wherein he in the reversion is vouched and joins; yet the declaration of tenant in tail is only good.

But if tenant for life, the remainder in tail, be; and tenant for life suffer a common recovery, wherein he in remainder is prayed in aid or vouched; there the declaration is good, of tenant for life only for his life, and of tenant in tail for the rest: but if it had not been an immediate remainder in tail, then the tenant for life's declaration had been good for the whole feesimple.

If two tenants join in conveyance and sever in declaration, it is good severally for their moieties.

But if disseisor and disseisee join in a fine and sever in the declaration of the use, the declaration of the disseisor is only good.

If the feoffee to use and cestui que use before the statute join in feoffment to one that hath notice, and sever in the declaration of the use; the declaration of cestui que use is only good.

The feoffor or grantor that hath the use is the only person that may declare the use, and the declaration of the feoffee is utterly void. As, if I make a feoffment in fee, and the feoffee by his deed declare it to be to the use of I. S.; it is void.

But you must intend this rule of those that are feoffor and feoffee upon the original conveyance, and not upon a perfective conveyance which was induced. As if I covenant that I will infeoff I. S. upon condition to re-infeoff me, or covenant that I

The MS. omits I. S. here; obviously by a clerical error.