that 'twas to the Use of the Conusor and his Heirs, or to any other Use than what is in the Deed; the Party himself or his Heirs cannot aver it, but they are estopped by this Deed, tho' subsequent; however, a Stranger is at liberty to make such Averment: But if a Deed be precedent, and the Fine varies, and is not the same, there none are estopped, neither the Party himself, his Heir, nor a Stranger; because the Fine stands alone, without any Deed referring to it, and declaring the Uses of it.
By what Means the Use of a Fine Arises. Judgment affirmed.—Then 'twas urged, That this second Deed was sufficient to declare the Uses of this Fine: If the Use arise upon, or by Transmutation of the Possession, as by Fine or Feoffment, 'tis sufficient without any Deed; the Use arises only upon the Party's Declaration or Appointment: If without a Transmutation of Possession, there must be some Agreement binding the Party upon some Consideration; for the Use being founded in Equity, the Chancery would never relieve, where there was no Transmutation of Possession, or Agreement upon Consideration; and if in Consideration of Blood, it must be by Deed; because the Consideration is not binding without it. Moore's Rep. Callow and Callow. If this Writing of 31. had expressly declared, that it should enure to the Husband and his Heirs upon such a Contingency, this had been a good original Declaration of the Use; and would have altered the Estate, because of the Transmutation of the Possession: And as 'tis now penned, 'tis a good Writing, sufficient to declare the Uses of the Fine. Any sort of Agreement, whereby the Parties Intent appears is sufficient. An Use is an equitable Thing; and if it appears to have been intended, that is enough, 2 Leon. 14. Brent's Case: Any Agreement between the Party that hath the Estate, and him who is to have it, may raise an Use in this Case. A Bargain and Sale of the Lands carries the Use, tho' no Mention of it: 8 Rep. Fox's Case, Crossing and Scudamore; in this Case there was an Agreement between Husband and Wife, that he should have the Lands, if he made a Jointure. A Bargain and Sale, tho' not inrolled, a Charter of Feoffment without Livery, shall raise the Use of a Fine levied between the same Parties; therefore this Writing is a good Appointment. But suppose it were not of it self, 'tis sufficient to control that of the 29th; for 'tis agreed thereby, that all Deeds shall be revoked; which shews plainly, that the Fine was not to be to the Uses mentioned in that Deed, especially when it varies from it. A Parol Declaration of the Mind of the Party will be enough to control and hinder the Raising of an Use by the Deed and Fine, where different; and if so, then the Use here is to the Wife and her Heirs. Then supposing the Variance frivolous and immaterial, this Writing of the Husband and Wife is a good Appointment. The Trustees or Conusees of the Fine need not to be Parties to the Appointing or Declaring of the Uses: The Indenture precedent is but directory, and if there be another Direction under Seal before the Fine, it must over-rule the first. [146] Writing of it self seems enough, 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one Use, before the Fine be levied, would not that control it? This is rather like a last Will, and the last before the Fine must stand. A Covenant to stand seised must have all the necessary Parts of a Deed, so as to have been obligatory in Chancery before the Statute; but a mere Declaration of Uses need not to be formal. The Use declared by 29th was always revokable till the Fine was levied: And this is sufficient both to revoke the last Declaration, and to declare new Uses. This amounts at least to a Deed Poll, and therefore sufficient. Then were cited Moor 22, 512. Latch 139. and many other Authorities: And upon the whole it was prayed, that the Judgment should be affirmed; and it was affirmed.
Sir Edw. Hungerford and John Hill, Executors and Devisees of Will. Basset deceased,—Plaintiffs; v. Edw. Nosworthy,—Defendant [1694].
[15 Lds. Jo. 499; 2 Salk. 592. See Basset v. Nosworthy, 1673, Rep. t. Finch, 102; 2 Wh. & T., 7th ed., 150.]
Whether a Will can be revoked by a subsequent Will, the Contents whereof are unknown. 3 Mod. 203 [204]. Hard. 374. 1 Show. 537. by the
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