case jones against Morley James roll where conveyance enures by way of  transmutation of possession the use may be declare without deed else not S c  comb S c Mod S c salk S c comy S c ld ray S c Carth S c holt S c show p c  ejectment of the manor of fransham special verdict whether bowyer be seize in  fee of the land in question and be so seize by indenture of lease and release  date the twentysecond and twentythird of July recite a marriage intend to he  have between Edward Morley and herself and in consideration that Edward Morley  have agree to settle on her for a jointure so much of the manor of Barnham and  other his estate in Sussex as shall amount to the clear yearly value of three  hundred pound per annum at the time of the settlement during her life grant  fransham to sir William Morley and to I n in fee to the use of herself in fee  till marriage modern report and such settlement make then to the use of Edward  Morley in fee the jury find that the marriage take effect and that after the  marriage another indenture on the twentyninth of January in the seventeenth  year of Charles the second be make between Edward and whether his wife of one  part and Jones and Trusher on the other part recite therein that a fine be  already acknowledge and agree to be levy next Hilary term to be to the use of  Edward Morley in fee and that two day after videlicet the thirtyfirst of  January by another indenture between Edward Morley of one part and whether his  wife on the other they covenant to revoke annul and make void all contract and  agreement between they or any other for they till the marriage covenant shall  be perform the jury find a fine be levy octabis purification car that the  three hundred pound ayear be never settle but that two hundred and fifty pound  ayear be charge with a rend of fifteen pound that the two hundred and fifty  pound be in part of her jointure that on the nine of July in the eighteenth  year of Charles the second Edward Morley by lease and a march cro car W Jones  Mod show lev Carth comb salk will burr term Rep brown c c b vent Mod show  dougl cook b l modern report er p release do mortgage to double the land in  fransham in fee for six hundred and thirty pound that in the nineteenth year  of Charles the second Edward Morley die and his wife whether survive enter  into the two hundred and fifty pound per annum and enjoy it during her life  that double assign his mortgage to one in who right the defendant claim as  also as heir to Edward Morley that whether die and that the lessor of the  plaintiff claim as her heir holt chief justice deliver the opinion of the  court and say the general question in this case be whether the fine levy octab  purification be to the use of the husband and his heir or of the wife and her  heir and we be all of opinion that the fine be not guide by the deed of the  twentyninth of January but control by the write between husband and wife of  the thirtyfirst of January I shall premise three thing to be take as grant  first if there be a deed to levy a fine to such and such use at such a time to  such person and in pursuance thereof a fine be levy to the same person and at  the same time the fine shall not be aver to be to other use by any parole  averment or write which be not a deed but by a subsequent deed it may but if  the fine vary in any circumstance from the deed the party be at liberty to  aver that the fine be to other use different from the deed and so be Lord  Cromwell case a and the earl of Rutland case b second though the fine vary  from the deed and be levy at another time or to other person yet if nothing  appear modern report to the contrary this fine shall by construction of law  enure to the use contain in the deed three if this fine have be levy accord to  the deed of the twentyninth of January the use thereof can not have be control  by the write of the thirtyfirst of January for though the deed of a feme  covert can not be bind yet be relative to a fine it give a efficacy and  operation to the deed and be as conclusive as if she be a feme sole have  premise these thing I say this fine be not to the use of the deed of the  twentyninth of January but be control by the write of the thirtyfirst of  January and first this fine vary from the fine agree on to be levy by the deed  of the twentyninth of January for that fine be not to be levy the same Hilary  term as this be but the next Hilary term which be Hilary twelvemonth and so  this fine be levy before the time in the deed and thus vary from it leaves  room for a averment that it be levy to other use there be a difference between  a fine vary from the precedent deed and a subsequent deed declare the use of a  precedent fine or recovery videlicet that in the latter though all stranger  may before the statute car c of fraud and perjury have be let in to aver a  parole agreement prior to a subsequent deed yet the conusor or recoveror or  his heir at law can aver against a subsequent deed that the fine or recovery  be to other use than those contain in the deed they be estopped by the deed  but if the deed be precedent and the fine and recovery vary therefrom no party  be estopped now as this fine vary from the deed and thereby let we in a  averment so here be a express declaration of a use by the write of the  thirtyfirst of January that the fine shall be to other use and it be  reasonable she shall be satisfy that her husband will make a reasonable  provision for her and therefore may expect such a declaration as this and this  new agreement be sufficient to declare the use of the fine there be several  way in the law for declare of use whether upon transmutation of possession or  without it if a use be declare to be on transmutation of possession as in a  fine or feoff there needs no agreement whatsoever it be sufficient for the  party on the transmutation to declare that the use shall be to such party and  of such a estate but if a use arise without transmutation of possession the  use then do not arise by virtue of any declaration or appointment but there  must be some precedent obligation to oblige the party declare the use which  modern report must be find on some consideration for a use have its foundation  general on ground of equity can not be relieve in chancery without  transmutation of possession or a agree a   S c jenk S c and S c more S c  Sackvill   light b   modern report er p mean find on a consideration and  therefore if bargain and sale be make of a man land on the payment of money  the use will have raise without deed by parole but if the use be in  consideration of blood then it can not arise by parole agreement without a  deed because that agreement be not a oblige agreement it want a consideration  and therefore to make it a oblige agreement there be a necessity of a deed but  where there be a transmutation of possession there need no deed but only the  bare appointment of the party now in this case there be a transmutation of  possession and this write of the husband and wife of the thirtyfirst of  January though it be no deed yet it sufficient show the intention of the wife  and so be a good original declaration of the use of this fine so the next  thing to be consider be whether the write of the thirtyfirst of January be  sufficient to declare the use of the fine or if it be not sufficient whether  it will control the deed of the twentyninth of January first I hold it be a  sufficient write to declare the use of the fine now it be not necessary in  declare a use if there be a transmutation of possession to use the very word  use any expression whereby the mind of the party may be know that such a one  shall have the land be sufficient we all know the nature of a use that it be a  mere equitable interest the estate in law be in one and the benefit and  advantage of the estate in another use be indeed strange thing in their nature  and of new invention in the law the original of they be to avoid the statute  of mortmain burn case a for when those statute prohibit the convey estate to  the clergy they find out this way to have the estate convey to lie person  under secret trust to their use which in those day affect the conscience of  the people and until the time of Henry the eight clergyman sit in chancery who  have power over man conscience enforce they to perform those use indeed for a  time use be keep secret and do not much appear until the difference between  the house of York and Lancaster wherein the whole nation be engage both party  find those use convenient and fit to preserve their estate agree to support  they so that in Edward the four be time we find more mention of they than  before and they modern report be thus bring in by a general consent be  afterward lick into form so that at length if a man for money alien and grant  his land to one and his heir by this a use be raise by construction and it  amount to a bargain and sale and so be fox case a now in this case here be a  agreement between the husband and wife which though void as to a agreement yet  be good to declare a use as suppose a man at this day make a bargain and sale  and the deed be not enrol or make a charter of feoff and there be no livery  yet they will be sufficient to declare the use of a fine afterward levy  between the same party but suppose this be not a sufficient declaration of the  use of a fine yet it will be sufficient to control the deed of the twentyninth  of January for thereby it be express declare that all write agreement and  assurance and deed whatsoever different from the agreement in the marriage  shall be revoke and annul so that take it in this sense to control and hinder  the rise of a use accord to the deed of the twentyninth of January no use can  rise to the husband but the estate be the wife the use must by operation of  law be to the wife and her heir and if so then the lessor of the plaintiff  have a good title judgement be give for the plaintiff and affirm in the house  of lord