to levy a Fine before this Day Twelve-month, and before the Day he had levied a Fine; now the Deed was no Revocation, because not express, and of itself made no Alteration in the Estate; and the Fine of it self was not, because not by Deed attested; but both together make a Revocation; they are but one Conveyance, as was adjudged in the two Cases of Wigson and Garret, and Herring and Brown; should not this have been a Revocation? Either this first was designed to deceive the Wife, or the second was designed to deceive Creditors and Mortgages; the Creditor is to be preferred. Suppose the first were made, as 'tis most likely, to enable him to borrow Money, 'twould be hard to construe the second Good: Would any Purchasor have doubted this Title, if he had seen the Fine and this Deed of the 29th? To allow this second, is to countenance a Practise which may deceive any Man; for a Deed precedent leading the Uses of a Fine is binding, and concludes against any Thing but an intermediate Deed between that and the Fine; and such private Agreement between Husband and Wife may be had and pretended in any Case whatsoever. Then was cited Havergill and Hare, 2 Rolls 799. And 'twas further said, that against a Mortgagee the second will be void, according to Proger's Case, 1 Sid. 133. A Conveyance voluntary, that was good in its first Creation, may become void by subsequent Accidents; and in Truth it was admitted below, that this second Writing was no Deed, had no more Efficacy than a Parol [144] Averment; and consequently the only Quære can be, If this Fine be another, and different from that which was meant and intended by the Deed of the 29th? For if it be not, then Parol Averments or Agreements ought not to be admitted. Besides, this is but Evidence, nor proper for the Court to consider, and the Jury should have concluded specially, That if Parol Evidence, or a naked Averment should be admitted, then they find to such Uses: But here 'tis like finding the Badges of Fraud, without finding the Fraud it self; or a Demand and Denial, without finding a Conversion; upon neither of which can the Court judge the Thing to be a Fraud or a Conversion. And for these and other like Reasons it was prayed, that the Judgment might be reversed.
Argument for the Defendant in Error. Where Averment allowable, or not.—It was argued on the other Side with the Judgment, That this Fine thus levied was not to the use of the Husband, but of the Wife and her Heirs; that the Fine is not to the Uses in the Deed of the 29th, but controlled by that of the 31st. 'Twas agreed, that if there be a Deed to levy a Fine, and in Pursuance thereof a Fine is levied, to the Person, of the Lands, and at the Time, no Proof shall be allowed, that the Fine was to any other Use: But if it be in Case of a subsequent Deed, then Averment may be against it; but by the making of a precedent Deed, all Parties are estopped to contradict it, unless there be another Deed of equal Nature to control that. Where the Deed is punctually observed, there is no Liberty to aver the Contrary; but where 'tis not pursued, the Averment is consistent. Where it doth vary, yet if nothing doth appear to the contrary, there the Fine shall be construed to be to the Uses of the Deed by Construction of Law; a Wife is bound by the Husband's Declaration; and if the Fine be in Pursuance of the Husband's Deed, 'tis as binding to her, as if she were a Party: An Infant cannot avoid a Fine, where there was a Deed agreeable, but by reversing it.
Then 'twas argued, That here was such a Variance as did allow of such Averment; that 'tis True, the Deed of 29. had been a good Declaration of the Uses of this Fine, notwithstanding the Variance, if the Writing of 31. had not been made; but there being a Variance, that is admissible; that this Fine now found differs as much from that in the Deed, as if it had been levied at a Time after; that levying it before, makes it not the same. The Woman perhaps here did agree to levy a Fine at this Distance of Time, that she might in the mean while have a competent Provision out of her Husband's Estate for her Jointure, then when she levies this Fine at a different Time, she doth not do it in Pursuance of the first Deed. Then 1 Rep. 76, 99. 3 Bulstr. 231. 2 Rolls Abridg. 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted, and either answered or applied to this Point of Variance.
Then 'twas said, That there was a Difference between a Fine that varies from a precedent Deed, and a Fine that is followed with a subsequent Deed or Declaration of Uses. If there be a [145] subsequent Declaration, the Heir at Law cannot aver
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