[ BURGESS ย. WHEATE. because, though the Crown may insist on being sued in its own pro*per Court, yet it may sue in what Court it pleases: Finch, 84 (h). It may bring a quare impedit or writ of escheat in B. R.; *132] it may have a quare impedit in B. R., though there has been a recovery in C. B. But it is yet more extraordinary in this case, as the Crown might have made the objection; and yet waived it, and filed its information in the same Court, where the cause was instituted; otherwise, all the proceedings in the original cause had been fruitless, and the Crown might have then gone into [the] Exchequer: in return for which indulgence, this objection is now made. But if any one else could have made the objection, Burgess cannot; for he brought the Crown here first, and so is estopped. In Sir John Warden's Case before Lord Talbot, there was an objection for want of jurisdiction here, and that the matter was properly triable at law. But it being disclosed, that he had filed a cross bill, the Court did not enter into that objection; but said, the defendant had given a jurisdiction. This brings me to consider the merits of the claim of the Crown. The great question is, whether the Crown has a right to a conveyance of the legal estate from Mrs. Harding's trustee, as an equitable escheat, by the death of Mrs. Harding without heirs on the part of the father, from whom the estate descended to her. I shall consider the right of escheat, in three lights. First, In what situation it stood in respect to conveyance at common law, before the invention of uses. Secondly, In what situation it stood with respect to conveyance to uses, before the statute of uses was made. Thirdly, How it stands since that statute, and now, with regard to trusts. The result and application of the whole will decide the question, how far the Crown is, or is not, in equity entitled to *133] a conveyance, from a trustee or those in his place. *In treating these points, one might expatiate into a curious field of learning, from the writers on allodial and feodal property; but as the doctrine of tenures was never wholly adopted into our constitution, the different periods of our laws cannot be accounted for from a strict notion of feuds. So that it would be perplexing the case to go into the general learning. I shall therefore only have recourse to it occasionally, so far as I find, by our own writers, it is now adopted into our constitution. In other respects, that law is of no more use than the Roman law. It serves for ornament and illustration. 1. Consider how escheats stood at common law, before uses were invented. An escheat was, in its nature, feodal. A feud (h) "Vide Cecil's Ca. in Exchequer, 7 Rep. 18 b, where Cecil filed a bill in the Exc. Chamb. for relief against a bond to the Queen, for which process was sued out of the Exch., and his bill was founded on stat. 33 H. 8, c. 39, s. 79. The Court was of opinion to relieve him; but the A. G. perceiving the opinion of the Court, ulterius prosequi non vult; Ibid. 20 a. It is not mentioned, who was the defendant; but it seems it must have been the A. G. only, for the Queen could not." MS. Serj. HILL. See 16 Vin. Abr. Prærog. (Z.); Com. Dig. Id. (D 85). BURGESS v. WHEATE. was the right which a tenant had to enjoy lands, &c. rendering to the lord the duties and services reserved to him by contract. On the other hand, a right remained in the lord (after a grant made) called a seignory, consisting of services to be performed by the tenant, and a right to have the land returned, on the expiration of the grant, as a reversion: a right afterwards called an escheat. And as the grant was more or less extensive, the reversion was more or less remote: for the feuds were sometimes temporary, sometimes hereditary; and a temporary one ended on the grantee's death. Sir Henry Spelman takes notice only of hereditary feuds, nor do our own laws. And though it may seem a paradox to modern ears, a feoffment to A. and his heirs did not pass a fee-simple originally, in the sense we now use it; but only an estate to be enjoyed as a merum beneficium, without power of alienation, in prejudice of the heir or the lord. And the heirs took it successively as an usufructuary interest; and in default of heirs, the land escheated or reverted strictly speaking. If there was an heir, and by legal impediment he could not take; the land escheated. Bracton fo. 23 a; 46 Edw. 3, pl. 4; Bro. Escheat, pl. 2. In short the reverter took place, when the grant expired naturally, and the heirs failed in length of time. In case of *escheat, it was cut [*134 ] off by civil law impediment, and was an accidental determination of it. The heir took by purchase, and independent of the ancestor. He could not alien: nor could the lord alien the seignory, without the consent of the tenant. Afterwards the right of the lord gradually underwent several variations; which tended to diminish the interest of the heir and the lord, and to increase that of the tenant: so is Spelman, c. 1. The first variation was, when the power of alienation, with leave of the lord, was introduced, then the heir no longer took independent of the ancestor; but, what the ancestor pleased to leave him, and by descent from him. In Bracton's time, a doubt arose how the heir took. Some thought he was co-infeoffed with the ancestor, and that he took by purchase from the donor. Others held (which opinion prevailed in Bracton's time) that he took by descent. This accounts for what is said in 2 Inst. 336, that a formedon in descender did not lie at common law of an estate-tail, because the issue took by descent: but though he lays down the law, he don't give the reason. Therefore, if the ancestor aliened, the heir was defeated; and the effect to the lord was only in the chance of the escheat, from the change of the tenant, viz. from grantee to alienee. The next step in favour of the tenant was, to alien without licence; for which purpose, a larger grant was necessary, i. e. to him, his heirs, and assigns. This gave the standing right of alienations. Bracton, 1. 2, c. 6, s. 1, fol. 17. So the tenant could alien and change the escheat, and the lord was obliged to warrant such alienee. The only restriction on the tenant was, that he could not prejudice the lord, by lessening the services reserved. Bract. fo. 23 b. The next privilege to the tenant was, that he might alien, BURGESS บ. WHEATE. where the grant was only to him and his heirs. 2 Inst. 66, gives the reason, that such a tenant was not to be restrained from alienation. It was against the nature and purity of an estate infeoffed at common law. This was in effect only a right of alienation sans notice. The next step effected the right of escheat; which was not only to alien, but to charge or incumber, the feud. And the lord * 135 ] *was to take it, subject to such incumbrance. Wright's Ten. 117; Spelm. 21, 23; Bract. 382, § 8. This power of incumbering was more prejudicial to the right of escheat, than the power of alienation was. That only changed the chance; but by the incumbrances, more or less, the escheat was in proportion defeated. However, it was still only subject to the acts of the tenant. The lord's right was still farther affected by acts of Parliament and judicial determinations; which subjected the land, not only to acts of the tenant, but of the law on the tenant's account. Stat. Westm. 2, subjected the moiety of the tenant's land to elegit; statutes Merchant and Staple (13 Ed. 1, and 27 Ed. 3), affected the whole feud for the tenant's debt, even in the hands of the heir. Bro. Dower, pl. 64: It became also subject to the dower of the wife. The books have omitted the title of original reverter; but the escheat is said to be a compensation to the lord, for the loss of services: Quia homagium et servitium amisit. So is F. N. B. tit. Escheat, A. The right of reverter is quite omitted out of the definition. This, before the invention of uses. 2. How escheats stood after the introduction of uses, when the tenant might sever the legal from the beneficial interest. Then the two interests were considered as two distinct sorts of property, in different persons. The cestuy que use was no longer tenant at law, nor was the land liable to be subjected to his incumbrances, as dower, executions, &c. Chudleigh's Case (i). But though the land was not liable at law, on account of the cestuy que use, yet it was still liable on account of the feoffee to uses. Bro. Feoffment to Uses, pl. 10. Poph. (k). This defeated the creditors of cestuy que use, and was found inconvenient. Persons having actions against him were defeated. Tenancy in dower, and by curtesy, was gone; and therefore, several statutes in favour of creditors were made to restore all the claims against cestuy que use. Bacon, vol. 2, of Uses. Thus, 4 H. 7, 19 H. 7, c. 15, and others were made, to restore the fruits of tenure to the lord, against cestuy que [ *136] use; *as wardship, heriot, relief. Yet, none were made to restore the loss of escheat; which, as Spelman observes, is not only the fruit of tenure, but the very tree itself. Thus it was, till the making of statute of uses. 3. That statute united them, but they still continued under the name of trusts, as a divided interest. It was done by limit (i) 1 Rep, 120 a. (k) P. 3, Earl of Bedford v. Russel; see also Hardr. 469; 2 Ves. Sen. 633-4. There BURGESS V. WHEATE. ing the use to the feoffee, who was declared a trustee. was one use which the statute did execute, and another which it did not. So trusts succeeded uses. Aliusque et idem nascitur. And as a use could not be on a use, it took the name of a trust; and, as the law would not meddle with a use on a use, equity therefore does. This brings me to consider the nature of this use, with respect to an escheat. It has been contended on the part of the Crown, that equity is to be considered as a thing of yesterday: That trusts were not come to any maturity, nor governed by any settled principles, even in 1718: That it was left to the judge in equity, whether to observe the rules of law, with respect to uses, or to depart from them: That, as to tenancy by curtesy and tenancy in dower, equity differed from itself. All this is to be considered; and part of it is a melancholy representation of a Court of equity. As to its pedigree, one may with pleasure observe, that equity is as old as Bracton, who, fo. 23 b, distinguishes how it would be secundum æquitatem, and how secundum rigorem juris. When once it existed, it must have its rules and principles, like other artificial systems. It was not a perfect system. New cases begat new, but not contradictory rules to the old ones. When once a trust became the object of equity, the same governing principles were observed in trusts, as before in uses. The analogy, as to the outlines of each, is apparent. Bacon, Law of Uses, 57. Uses took place from a reasonable cause, to give men power to dispose of their own: So did trusts from the convenience of families. This, the only motive that made mankind endure *uses and trusts; Bacon, 80. A conveyance [ *137 ] with consideration without notice bars a trust; so it did an use; 2 Roll. Rep. But it is not barred in trustee's hands, or in the hands of purchasors with notice, or without consideration. As to the construction of trusts, the intention of a person creating a trust chiefly governs, where not against good policy in its construction; Hardr. 494; Bacon, 79. So it was as to uses-trusts and uses not only agree in these particulars, but in the different construction of deeds in law and equity. At law the legal operation controls the intent, but in equity the intent controls the legal operation of the deed. It is not sufficient to single out a few instances and exceptions, which no rule is without, and which besides, in this case, I think are sufficiently accounted for otherwise. But it is said, the rule of uses was narrow and inconvenient, and that equity adapts to trusts, not so much the rule of uses, as the consequences of law: That trusts are alienable, will descend ab intestato, and be liable to, and capable of, the same limitations and successions; are valid and void on the same principles (except the case of dower, which proves the rule); and that in tenancy by curtesy, equity agrees with the system of law. These are objections all founded on one principle. The analogy must be confined, both in uses and trusts, to those cases, where they are considered as distinct from the legal BURGESS V. WHEATE. estate. In other cases, both uses and trusts will fall within the rules of law. This is reasonable, because there is no necessity of departing from them. It is said they are both alienable by like conveyances, &c. But this don't prove equity in construction of trusts to go by a different rule from the law in construction of uses; for uses went by this rule, and equity would not vary from the law unnecessarily. Anderson says, in Chudleigh's Case (Bacon, 78), there may be a possessio fratris of an use (k). It is no more than saying, the Chancellor held consultation with the rules of law, where [there was] no reason to [ *138 138] go against them. The instances prove the agreement *between uses and trusts; they agree with the legal system. And the case of tenant by curtesy is an exception to this rule. Equity does allow a tenant by the curtesy of a trust contrary to the rules of law. Perkins 69, § 349; and 499, § 457 (1). But this instance of deviation is not to be argued upon to consequences. It seems to have prevailed unaccountably, and against the opinion of the Judges themselves. It seems to have taken its rise in Lord Somers's time, Pr. Chanc. 67; in Snell against Clay, 2 Vern. 324, tenancy per curtesy was allowed of a trust, though there was an outstanding term. Brown against Gibbs, 97 (m). In Banks against Sutton, 2 Wms. (n), Sir Joseph Jekyll makes an observation on Lord Somers avoiding the authority of his own determination, and that he intimated a disapprobation of his own distinction between a use and a trust. Sweetapple against Bindon, 2 Vern. 536, was the next. Taken for granted, there should be no tenancy per curtesy or in dower of a trust. It is true Lord Keeper Wright held otherwise, and allowed a tenancy per curtesy of money to be laid out in lands. I think this precedent don't seem fit to be allowed; because the will, on which that determination was, admitted a doubt, whether the wife was tenant in tail. It is mentioned in Pr. Ch. 536. This has a correlate to the time of her dying, the brothers and sisters then living. In Banks against Sutton, Sir Joseph Jekyll don't approve any where of Sweetapple against Bindon. And though he held the wife dowable there of an equitable estate, yet he did it on particular reasons; because it was a trust created by the ancestor of the husband, and not the husband himself. This is too precarious reasoning to go upon. The husband found the estate subject to the trust created by the ancestor. Who can say that he intended the wife not to be dowable? Who can say that, if he had not found the estate under a trust, he might not have created such a trust? The next endeavour was to bring the husband down to a par with the wife. But this was denied in Chaplin against (k) Mr. Eden observes, that this is a mistake; "that Anderson, C. J., did truly and profoundly contest the vulgar opinion, that there might be a possessio fratris of a use;" Bac. on Uses, 11. (1) Watts v. Ball, 1 P. Wms. 108; Hearle v. Greenbank, 1 Ves. Sen. 298; Atk. 695, 716; Harg. Co. Lit. 29 a, [n. 165]. (m) Pr. Chanc. (n) P. 700; see also Forder v. Wade, 4 Bro. C. C. 521; Harg. Co. Lit. 31 b. |