BURGESS ย. WHEATE. Horner (o); Attorney-General against Scot (p), and in Goodwin against Winsmore (q), per Lord Hardwicke, 1742-3. Casborn against Inglis (r); husband denied to be tenant per curtesy, by Sir J. Jekyll, but that was reversed. It is, I own, almost a reproach to a Court of equity; but shall not equity [139] therefore follow the rule of uses? shall it make another rule deviating from that? I think that there ought to be a conformity in trusts and uses, and that this case of tenancy per curtesy, which is different, ought to be the only one, and that there the bounds are fixed: Hardr. 494; Attorney-General against Scot; Lord Coventry's Case. Equity, in determining trusts, has observed the rules of law touching uses, unless there was a reason to the contrary: And the instance of tenant per curtesy does not furnish any reason. Having considered the right of escheat, and how affected at common law by conveyances to uses-and since upon trusts; I shall now apply the rules and principles collected from the foregoing considerations to the case in question, and see what conclusion arises from thence, and how far the conclusion I shall draw is warranted by law and reason. And under this head I will consider what arguments have been urged against it. Suppose Mrs. Harding, feoffee at common law of a trust estate, had aliened to Sir F. Page, she would have substituted him [as] an alienee instead of herself for services and escheat. If an escheat had fallen, which depended not on her delinquency, would the lord have been entitled? This is clear. Suppose Mrs. Harding attainted of treason or felony, the lord would not have been entitled. But the Crown says, she had reserved to herself the equitable interest. It will be necessary then to consider how the Crown would be affected by a use, supposing it had been a feoffment to use made to Sir F. Page. Would the lord's condition with respect to an escheat have been bettered by such a conveyance at common law? I think, it would have been worse. He would not have been entitled to an escheat on Mrs. Harding's felony. 5 Ed. 4, pl. 18, fo. 7 b; Authority in point against the lord's claim, and questions who should have it. If the lord is at law entitled to escheat, on death without heirs, or attainder of feoffee to uses, and not on death, &c. of cestuy que use, it strengthens the authority of the case; that if it had been determined otherwise, in favour of the lord, it would have given him a double chance for his escheat. *Brooke pl. 34, agrees the lord shall not have it, [ *140 ] nor the heir (by reason of corruption of blood) and that feoffee shall retain it to his own use. And though this is introduced by an ideo videtur in a modest manner, yet many of his opinions are so introduced, and have generally been thought of very great authority. Lord Bacon, 79, confirms it; for, he (0) 3 P. Wms. 229. (p) Forest. 138. (q) 2 Atk. 525. (r) 1 Atk. 603, 7 Vin. Abr. Curtesy, (E) pl. 23, very fully reported. It was the case of an equity of redemption; and BURGESS V. WHEATE. [ *141 ] says, the lord shall not have it, because he has a tenant by title: and then differs from Brooke, who gives it to the feoffee for his own use, and says feoffee shall retain it either in pios usus, or the will of the feoffor. This seems to arise from an old notion, that a man's estate should be disposed of in pios usus (when there was no owner) in like manner as the ordinary used to take an intestate's effects pro salute anima. But Brooke's notion is not so strange, even by Lord Bacon's own account. From these authorities it is clear, that if Mrs. Harding had been cestuy que use and attainted, the lord would not have been entitled to the escheat. How then does the case stand as a trust? It is clear that the Crown at law is not entitled in case of a use; then if trusts in equity are analogous to uses at law, (and I think they are) neither will the Crown be entitled in case of a trust in equity. Yet the question will not depend merely on that analogy, but on other arguments and authorities in point. Sir George Sandy's Case (s) is in point, and that and the 5 Ed. 4. mutually strengthen each other. Freeman is rather more accurate than. Hardres. As Lord Hale had an analytical head, it will give a clearer idea of the strength of his argument, to give an analysis of it. He first states several cases where trusts are forfeited, as for treason, by statute;-for alienage, by prerogative; for a debt to the Crown, partly by statute, partly by prerogative, and partly by cursus scaccharii, or the course of revenue. Then he distinguishes these cases from an escheat, as founded on a different ground, for want of tenant. Then he goes to a term; and gives reasons why a trust of a term cannot be forfeited. Then comes to his conclusion; if not a chattel, then not forfeitable; if a chattel, Freeman never had it to forfeit. I think this good sense, as well as good law. *As to the inheritance, the lord is entitled to services, while tenant has the land; when no tenant to perform the one, or hold the other, the lord shall have it. Here is a tenant de jure to perform them; and so no forfeiture. Trinity College against Brown, 1 Vern. 441, goes on the same principle; the legal tenant [was] then living, therefore the best beast of cestuy que trust not liable. Some objections were made to Sandy's Case. It was said to be a compassionate case. Much may be said of the charity of Lord Hale. He was obliged to mention the relations of the person murdered. But I meet with it only once; so far is he from including any thing to conciliate the passions of mankind, as an ingredient to his determination. "Twas said he was a young judge. He had at that time a great deal of experience, and his abilities were very great. I have seen determinations of the commissioners, during the interregnum, that do him great honour. The Case of Sir George Sandys was depending a (s) Hardr. 458, 2 Freem. 129, 1 Sid. 403, 1 Hale H. P. C. 249; cited also in A. G. v. Duplessis, Parker, 156. BURGESS V. WHEATE. great many years;-argued by very great men: P. 17 Car. 2, & M. 20 Car. 2; and this adds great weight to the authority. 21 Car. 2, Hale and Trevor gave their opinions. It is said, that only two judges gave opinions;-but no one can suppose that there were but two judges during four years in that Court. If they differed, Hale would never have given his opinion without mentioning it. In his Pleas of the Crown(t), he says that it was una voce resolved, so no doubt but all the judges of the Court concurred. It plainly appears it underwent his serious consideration on second thoughts, by the manner he ranges his argument, in his Pleas of the Crown, different from what he did before. "Tis said, Hale goes on wrong principles; for right of escheat is not founded on want of a tenant but of an heir, and as an heir was wanting, the estate should have escheated. But I think escheat not founded on want of heir, but of tenant to perform the services. Fitzherbert (v), who is most accurate, expressly puts it upon that footing. Some books may use the expression, "for want of heirs:" but I believe its promiscuous use is owing to this, that before power of alienation want of tenant and heir was the same thing, *for at the death [*142 ] of the ancestor none but the heir could be tenant. Another objection is, that Hale supposes the land subject to trust will, on the trustee's attainder, or death sans heir, escheat to the Crown discharged of the trust: whereas in equity it will be liable to the trust. And so said, if the lord takes the estate subject to the trust, he ought to have, in return, a reciprocal benefit on the death of cestuy que trust without heir. I think this position and inference not warranted by any judicial determination. Pawlett against Attorney-General (u) and Carter 67 (w), and Pr. Ch. 200(x), are cited to support it. The first, I shall consider by and by; the others are mere dictums of judges, collateral and foreign to the matter in question. In Carter 67, the question was, who should be considered as occupants. As to what Bridgman says in Geary against Bearcroft, the whole must be taken together. The other three judges had urged the argument ab inconvenienti, and Bridgman answers them. They said, a man conveys lands to trustees, and they commit felony, his lands shall be forfeited, though he may have relief in equity. Bridgman says, though equity may relieve, yet we must not take prejudice from equity against arguments at law. The equitable part is not the opinion of Lord Bridgman, 'tis only anticipating an equitable objection that might be made against it. Whoever looks into Geary against Bearcroft will, nine out of ten, be of opinion with the three judges against Bridgman. Now if he was mistaken in his legal point, more likely he should in equity, being recently brought into that Court from being a chamber conveyancer; and on a writ of error in B. R. brought on Bridgman's opinion, the Court affirmed the judgment of the three. As to (t) Vol. i. p. 250. (v) F. N. B. 337, 4to ed. (u) Hardr. 465. (w) Geary v. Bearcroft. (x) Eales v. England: see 2 Fonbl. Eq. 170, n. (5th ed.) [ BURGESS v. WHEATE. Pr. Chan. 200, Eales against England, the same expression is not in Vernon (y), and this was a very extraordinary medium of proof, of which no precedent had ever been before him; 'tis proving incertum per æque incertum, if not multo incertius. Both the sayings of Bridgman aforesaid, and of Trevor here, have not the least relation to the matter in question. In this 143] * last case, the question arose, upon the death of a trustee for 3007. in the life of the testator, whether the 3007. legacy was lapsed. Lord Trevor might have used many more similar and certain instances. Pitt against Pelham (2) must have occurred to him, where held, that death of trustee would make no alteration in respect of the beneficial interest. Instances where trustees for payment of legacies have died in testator's life, the estate has descended to their heirs, and been considered as a trust; and many much more similar:-None more difficult to prove; and had he been called upon to prove his medium, I believe he could not have done it. On the contrary, I believe, on the death of feoffee to uses (sans heir) the books say the lord shall take the fruits. This accidental accruer of a benefit comes in lieu of another benefit, and cestuy que trust seems no more relievable in this case, than on a sale without notice by the trustee. I think the contrary notion has been introduced by considering an escheat on the foot of a forfeiture. But they differ materially not only in the manner of the Crown's taking, but in respect of the consequences. The Crown takes an estate by forfeiture, subject to the engagements and incumbrances of the person forfeiting (a). The Crown holds in this case as a royal trustee, (for a forfeiture itself is sometimes called a royal escheat), but in general I apprehend an escheat is taken free from any equitable claim. If a forfeiture is regranted by the King, the grantee is a tenant in capite and all mesne tenure is extinct. If land escheated be regranted, he shall hold in honour. Therefore the position, that the lord takes the escheat subject to the trust, seems not warranted; though 'tis not necessary, I think, to give an opinion upon it (b). But supposing the position alleged to be true; why ought the lord to have a reciprocal equity on the death of cestuy que trust without heirs? What was cited out of Lord Nottingham was the argument of council, who throughout confound forfeitures and escheats, and speak of attainders in general without distinguishing, whether of felony, which would create an escheat; or of treason, which would create a forfeiture. It has [ *144 ] been said, the King may be subject when in the post, as * when mortgagee is attainted, and shall have equity of redemption, when mortgagor is attainted, for the trust charges the land, when non egreditur personá; Sir Salathiel Lovel's Case, Salk. (y) S. C. 2 Vern. 466. (*) 1 Ch. Ca. 177, 1 Ch. R. 283. (b) By 39 & 40 Geo. 3, c. 88, s. 12, any escheated manors, &c. shall have been liable at the time of their escheat, and to make grants to trustees for the execution of such trusts: by which it appears, that it was thought, that the Crown had not that power without the interference of the Legislature. 85, where there was a saving of blood, it was contended for- Several cases have been mentioned to encounter Sandy's Case. Attorney-General against Holland (in Aleyn, 14, &c.) was cited to shew the King shall have the benefit of a trust, as well as of a legal estate. That was not determined upon the merits; but Aleyn, 14, and also Stiles (c), suppose a trust for an alien did go to the Crown;-that the Crown takes by prerogative: At common law, if an alien purchased and took a conveyance, he took it for the benefit of the Crown, by prerogative. After uses invented, 'twas necessary to settle where the use should go, purchased for the benefit of an alien. Therefore stat. 3 R. 2, c. 5, and 7 R. 2, were made to enforce the common law prerogative, which else had been evaded by the introduction of uses. The ground of it was originally a common law right; and if a trust had been created, the King would have been entitled to the trust the same as to the land. But does it hold therefore that a trustee takes for the Crown on death of cestuy que trust? The difference between taking by prerogative and escheat is material, and Lord Hale makes the distinction. BURGESS V. WHEATE. As to Pawlett against Attorney-General (d)—It never came on upon the merits. It was a demurrer only to a bill brought by mortgagor. The mortgage was made to Edmund Lud- [145] low's father, and descended from him to Edmund the secretary, and in consequence of his attainder, was seised to the use of the Crown. The executors of the father were entitled to the mortgage money, and they put in suit a recognizance entered into as a collateral security for paying the money. The Crown seized the lands, and mortgagor filed a bill, and made the Attorney-General and Ludlow parties. The Attorney demurred; said the remedy taken was improper, it should have been by petition of grace and favour, as they call it, but meant of right. Hale said, equity of redemption lay against the Crown, but as to the remedy or manner of suing, that was a matter of high nature; but he held the executor, and not the heir, entitled to the mortgage money. These are the circumstances of the case. What says Lord Hale, in Pawlett's Case? (d) Hardr. 465. (c) Pp. 20, 40, 75, 90, 94, R. v. Holland. |