SECT. II. stances neces sary to the execution of uses. contrary, the use must be intended to be in Of the eiraum- him; and that such was the form of pleading before the statute. If this be the course of pleading, it may be asked, what utility can arise from the doctrine of resulting uses? To which it may be answered, that although the rules of pleading do not require an averment of the use in favour of the feoffee, yet it may be averred to be in the feoffor; and that the want of a consideration and declara tion of the use is a sufficient circumstance to prove, that it was intended for him. I must here observe, that uses generally ré sult according to the estate and interest of the person or persons making the convey ance; and he or they, in that case, claim Anglesea. Altham, Holt Rep. 737. 1 Stra. 107. In the margin of Salkeld's Reports, which belonged to the late Serjeant Hill, opposite to the case of Shortridge v. Lamplugh, is the following MS. note, which, although not in the hand-writing of, is evidently dictated by, the learned Serjeant. Contra Vin. Uses (Y. "a.) pl. 1. and the notes, "pl. 24.; but most of the "cases there cited before "the statute; and, there"fore, Q. if since the statute it is not necessary, "in pleading a feoffment "or release, for the feoffor 2. under the old use. However, when a tenant in tail suffers a recovery without considèration or declaration of the use, the use (notwithstanding the aspect of some of the cases) will result to the recoveree in feem: for as the recoveror or demandant acquires a seisin in fee, the use, if it result at all, must result according to the extent of that seisin; the words of the act being, that the estate, title, right, and possession of the person seised to the use shall be transferred to the cestuique use; and in the very distinguished argument of the chief justice Lee, in delivering the opinion of the court in the case of Martin v. Strachan", is the following passage: "It is the use of the fee simple that passes to the recoveror from tenant in tail, " and which results to him (i. e. tenant in tail) “and his heirs, if no use is declared "." The preceding observations are made upon the case of a feoffment or other conveyance without consideration, and without the declaration of any part of the use. The law equally favours a resulting use upon a conveyance, where only part of it is limited, and the remainder left undisposed of; it being a See Argol v. Cheney, Latch. 82. Waker v. Snow, Palm, 359. m 9 Co. 8. b. Gilb. Uses, 61. Nightingale v. Ferrers, 3 P. W. 206. H 5 Term Rep. 107. 110. in note. See post, as to the effect of a declaration, or the want of one, in breaking the descent, Sec. 7. SECT. II. Of the circum stances neces sary to the exe cution of uses. (108.) (109.) SECT. II. rule, that so much of the use, as the grantor Of the circum- does not dispose of, remains in him P. Thus, sary to the exe- if a feoffment in fee be made to the use of cution of uses. the heirs of the body of the feoffor, the use stances neces is. undisposed of during his life; it will therefore result, and then he will have an estate tail executed in him. So if the use upon a feoffment in fee be declared to the feoffee for life, and no further declaration be made, the remainder of it will result to the feoffor: or if the use in the first instance be limited to the feoffor in tail without any further declaration, the use in reversion will result to him; but not so, if the use be limited to the feoffor for life or for years; because if it did, the feoffor could not have an estate for life or years, as he intended. It is the intention of the parties, to be col(110.) lected from the face of the deed, that gives effect to resulting uses. Therefore, it has been said, that the payment of 5s. or the like, serves as an implied declaration of the use to the feoffee, when it is not otherwise P Co. Litt. 23. a. Woodliff v. Drury, Cro. Eliz. 439. Audley's case, Dy. 166. a. 91 Mod. 161, 162. 1 Roll. Rep. 240. 22 Vin. 283. pl. 2. and the cases collected in the note. Ibid. 200. and cases in note to pl. 7. Post, 141. See next page and 1 Ves. 488. notis. Vide Dy. 111. b. in t Ibid. Adams v. Savage, 2 Salk. 679. Rawley v. Holland, 22 Vin. 189. pl. 11, expressly disposed of. On the contrary, the part with the use. In the case of a springing use, arising from a seisin in fee simple, where there is no express limitation of the use, until the event happens upon which the springing use is to arise, the use will result to the grantor in fee simple. Thus if A. enfeoff B. and his heirs, to the uses following, that is to say, after marriage had between A. and Anne, his "See Wilkes v. Leuson, Dy. 169. Wilkins v. Perrat, Moor, 876. Piers v. Hoe, Cro. Eliz. 181. 1 Leon. 125.-Booth's opinion eited SECT. II. intended wife, to the use of A. and Anne, and Of the circum- the heirs of A.; the use, until the marriage, (111.) An hereditament. (112.) The statute of frauds, 29 Car. 2. c. 23. by an express saving, does not extend to trusts and confidences, that arise or result by implication of law. It has however been said, that as a use now becomes a legal estate by the operation of the act, that clause is not applicable to it". It has been determined, that a resulting use may be rebutted by parol evidence. But neither the grantor nor grantee can aver a use to a third person since the statute. (4.) By the words of the statute every species of real property (except copyhold estates), whether corporeal or incorporeal, in possession, reversion, or remainder, may be conveyed to uses. The property, however, must be in esse at the time of the creation of the use. Therefore if A. covenant to stand seised of lands, which he shall afterwards purchase, to certain uses; no use can arise by virtue of such covenant upon lands, of which |