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no occasion now to enter into the merits of defendant's defence. BURGESS In bills of interpleader 'tis necessary to decide the right, be

WHEATE. cause the money is brought into Court. So where trustee disclaims or desires to be discharged, and 'tis a contest between volunteers for trust money or trust estate, there the Court frequently determines the right of the defendant, to see to whom the estate is to be conveyed, where the plaintiff is not entitled. But even in that case they sometimes will not do it, but order a conveyance to a six clerk not to prejudice the cause. If plaintiff has no right, defendant may hold till a better right appears; the possibility of that happening shews the impropriety of entering into consideration of the right of the trustee. I am clearly of opinion that the invidiousness imputed to his defence ought not to give the plaintiff a better right.

Many other cases might be taken notice of. As the mortmain act; where use was given to a corporation aggregate, the stat. 15 R. 2, gave the lord a right to enter. So where given to a body not corporate, it is void, but don't say for whose benefit it is void. The lord could not claim it, nor the party against his own act. So purchases by Papists (p). So a lease by one joint-tenant to A. reserving rent, lessor dies, the surviving joint-tenant cannot have the rent, it enures to the benefit of the lessee. So the case of tenants before the late act (9), where rent could not be recovered, &c. So Cowper against Cowper, 2 Wms. *753. In all these cases it is to the last de- *152] gree invidious, yet equity never interposed in any of them, though they lay under the highest temptation to do it before the late act, for the man held the land, and, but for an accident, must have paid the rent. There cannot be a stronger instance than Cowper against Cowper before Sir J. Jekyll. That was a demand set up by Mr. S. Cowper in a Court of equity, and as unfavourable a one as could come before a Court. Sir J. Jekyll says, “I own I cannot forbear declaring, that " were I to consider the matter not sitting in a judicial capacity, " but taking in all considerations, honour, gratitude, a man's “ private conscience, &c., I must think that this claim ought “ never to have been set up.” But did this invidiousness prevent the success of the claim? So far from it, that this declaration of his is only a prelude to the determination he made. I shall conclude with what he concludes with there, concerning the province of a Court of equity and the boundaries of its jurisdiction. “Upon the whole matter my opinion is, this title " should not have been set up; but now it is so, it appears a “ plain and a subsisting one; the law is clear, and Courts of “ equity ought to follow it in their judgment concerning titles to equitable estates; otherwise great uncertainty and confu“ sion would ensue. And though proceedings in equity are " said to be secundum discretionem boni viri; yet when it is “ asked Vir bonus est quis ? the answer is, Qui consulta pa

() By st. 11 & 12 W. 3, c. 4, s. 4; now repealed by 18 G, 3, c. 60: See The Papists' Ca., 2 P. Wms. 4; Carrick v. Er

rington, Id 361.

(9) 11 G. 2, c. 19, s. 15-See Jenner v. Morgan, I P. Wms. 392.

WHEATE.

Burgess trum, qui leges juraque servat. And as it is said in Rooke's

“ Case, 5 Rep 99 b, that discretion is a science, not to act
“ arbitrarily according to men's wills and private affections: So
“ the discretion which is to be executed here is to be governed
“ by the rules of law and equity, which are not to oppose, but
“ each in its turn to be subservient to the other. This discre-
• tion in some cases follows the law implicitly; in others assists
“ it and advances the remedy; in others again it relieves
“ against the abuse or allays the rigour of it; but in no case
“ does it contradictor overturn the grounds or principles
“ thereof, as has been sometimes ignorantly imputed to this
Court. That is a discretionary power, which neither this
“ nor any other Court, not even the highest, acting in a judi-
“ cial capacity, is by the Constitution entrusted with.” This
description is full and judicious, and what ought to be deeply

imprinted on the mind of every judge (r). [ * 153 ) * These are my sentiments, my Lord; and, as such, they are

submitted to your Lordship's judgment.

Lord MANSFIELD.--On the ground of the case on the certificate, the whole turns on the effect and operation of the deed of 1718, in a Court of equity. The first question that arose, was between the heir and the trustee only. Sir F. Page entered 1738; and July, 1739, Burgess, as heir of Elizabeth Harding, brought his original bill against the trustee. On the 14th of July, 1741, the cause came on to be heard. On the pleadings being opened, and the nature of the question appearing, Lord Chancellor himself objected to the Attorney-General's not being a party, in respect of the King's right by escheat. Both parties were extremely desirous that there should be no question on the escheat, and the Attorney-General did not insist upon it; but the Chancellor asking him, if he waived any right the Crown might have, and would consent it might be so entered, the cause stood over. The Attorney-General was then made a party, and the information was filed on behalf of the Crown.

There are three competitors before the Court. Two claiming as plaintiffs, and praying relief; the third a defendant, objecting to any relief.

The heir on the part of the mother claims by an alteration having been made by the deed of 1718, in this Court as well as at law. And had the trustee conveyed to Mrs. Harding after her husband's death (the only purposes for which the trust was created being then ended) the heir on the part of the mother had undoubtedly been entitled.

The King claims, as the deed of 1718 is a conveyance only of legal form, and has in this Court made no alteration in the beneficial estate; but has left it to go in this Court, as it would have gone before at law, and as if the deed of 1718 had never

been made. [ * 154 ] * The trustee objects to the heir's claim, because he says the

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WHEATE.

deed of 1718 has made no alteration as to the beneficial estate Burgess of which Mrs. Harding died seised ex parte paternd; and opposes the King's right, because it has changed the right of eseheat both at law and in equity; and upon a general objection that the plaintiffs must recover upon their own strength to entitle them to relief: for it is not enough for the plaintiffs to shew that the defendant has no right, but that they have a better upon equitable grounds; and, in the case of a trust, must shew a better right within the terms of the creation of the trusts.

It seems agreed in this case, that the heir ex parte materna cannot inherit the trust, because the trust ensues the nature of the land; which before the deed of 1718 could not have descended in the maternal line; and I am at present of that opinion. The doubtful question is, Whether the King is entitled to this trust? And that will depend on arguments drawn from the nature and effect of a conveyance in trust, and from the nature of the right of escheat.

I will follow the method that was used at the bar, under the four following heads. 1st, The nature of trusts of land, and the rules that govern them. 2dly, The nature of that right by which the King claims in the present case. 3dly, Whether if the trustee had died sans heir, the King must not in that case have taken the land in a Court of equity subject to the trust. 4thly, Apply the result of this enquiry, as between the King and the trustee, to the particular point immediately in judgment.

1. As to the nature of trusts of land, and the rules by which they are governed. By an enquiry into the nature of an use or trust of lands, no more is or can be meant, than (as to uses) to find out historically on what principles Courts of equity, before 27 H. 8, received jurisdiction in modifying or giving relief in rights or interests in lands, which could not be come at, but by suing a subpæna: as to trusts, what the Court does in modifying, directing, and giving relief in the . *said rights and interests in cases, where there is no remedy [ * 155 ] but by bill in a court of equity. Whoever shews, that the relief given now is more extensive, that it is considered by different or opposite rules, that the right is considered in different or opposite lights, will shew the difference and contrast between uses and trusts. The opposition is not from any metaphysical difference in the essence of the things themselves. An use and a trust may essentially be looked upon as two names for the same thing; but the opposition consists in the difference of the practice of the Court of Chancery. If uses, before the statute of Hen. 8, were considered as a pernancy of the profits, as a personal confidence, as a chose in action; and now trusts are considered as real estates, as the real ownership of the land; so far they may be said to differ from the old uses; though the change may be not so much in the nature of the thing, as in the system of law made use of upon it.

Having defined the terms, I will first shew negatively what

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is not the law and nature of trusts. I apprehend the old law of uses does not conclude trusts now; where the practice is founded on the same reason and grounds, the practice is now followed. Its positive authority don't bind where the reason is defective; more especially that part of the old law of uses, which did not allow any relief to be given for or against estates in the post, does not now bind by its authority in the case of trusts (s). The law of uses, before the statute, is the doctrine that gave rise to trusts after the statute, the struggle afterwards;—all that is present to our view is a series of things, that gives us perhaps a history of facts, and why they were; but gives us no plan consistently deduced from any system of natural justice, or public policy. Trusts, from the nature of the thing, may be left to the honour and faith of the trustee. In that case they are not the objects of law, otherwise than as

they may be fraudulent and void in respect of third persons. ] Or a court of justice may take * conusance and compel the ex

ecution of them. In that case trusts retain only the name of trusts: in substantial ownership the disposition in trust becomes the mere form of a legal conveyance. Trusts in England, under the name of uses, began, as they did in Rome, under no other security than the trustee's faith. They were founded in fraud, to avoid the statute of mortmain. Lord Bacon thinks them little known before Richard the second's time. Though the first hint of uses was probably to avoid the mortmain act, yet they were innocently applied, soon after, to other purposes. A benefit to issue out of lands could only be made by the interposition of uses. Wills of land could only be made that way.

Natural justice said, “ He who breaks his trust does wrong." So cestuy que use was drove to Chancery by breach of faith. There were not six cases of uses before Edw. 4th's time. The Court first interposed on very narrow grounds; so far as a personal confidence was placed in the trustee, they decreed him to perform the trust; but the heir of trustee or grantee was not liable; Kelw. 49. Subpæna lay only against trustee himself till Hen. 6, and then Fortescue changed it; 22 Edw. 4, fo. 6, pl. 18. This was against the heir, but upon a reason that equally holds with respect to the grantee. The Chancellor afterwards extended his remedy, unless the alienee purchased for valuable consideration without notice.

While heir or alienee were not liable, the plan, though narrow, was consistent; and was adhered to through all its consequences. But when these two exceptions were made, it was absurd not to give remedy in all other cases within the same reason. Till Hen. 8th's time, the widow of trustee held her dower, the husband his curtesy, the lord his escheat, and the King his forfeiture, free from the trust. Yet their title was not in reason better than the heir's.

In the time of Richard 3rd, the King, though trusted as a

(s) Hardr. 469.

private man, and coming in the place of trustee who was a BURGESS * villein, alien, or traitor, might keep the estate, or give it away free from the use. Corporations, though expressly trusted,

WHEATE. might keep the estate themselves. Thus stood the jurisdictions of Chancery with respect to those, against whom it was to give relief.

The jurisdiction was as narrow in respect of the persons to whom relief was to be given. The widow, the husband, the creditor by real lien, the lord, the King, could not sue as standing in the place of cestuy que use, or being owner of the estate. Where the confidence was to an intent, that could not be executed, it never was settled what should be done with the estate; 5 Ed. 4, f. 7, pl. 18. Because the lord there could not have it, as he claimed in the post; query, Who shall have it? Bro. says, the heir shall not have it, because of the corruption of blood, and ideo videtur, &c. Bacon says, it should go to the will, or in pios usus. If a man appointed an use by his will to one for life, remainder in fee to another, and the cestuy que use for life refused; because there was no confidence for the heir, nor for him in reversion, the appointee or feoffee should hold the estate for life, some way or other, for the benefit of the feoffee, and not of the feoffor; 37 H. 6, cited there.

Great inconveniences arose from so narrow and contracted a system, that the cestuy que use should enjoy and dispose, and yet not be owner to all purposes; and that the feoffee, who really had nothing, should be deemed owner, so as to convey estates out of his seisin, by legal conveyance, not subject to the trusts. Bacon's Use of the Law sums it up very emphatically in these words; “ There were so many inconveniences, “ that uses, from a reasonable foundation, were turned to a “ means of dispossessing many of their legal right. As the “man who had occasion to sue for the land, did not know “ whom to sue, the wife was deprived of her dower, the hus“ band of his tenancy by the curtesy, the lord of his escheat, " the creditors of their extent, and the tenant of his lease. For “ these rights were given by law from the true owner to the “ feoffee"(t).

* Many acts were made to cure these mischiefs in part; and [ *158 ] all looking on cestuy que use as the true owner in the cases provided for, in respect to demanders, creditors, lords, and cestuy que use's alienees of all kinds. On the same plan at last the 27 H. 8, was made, that the use should be the universal legal ownership. Lord Bacon says, 'tis plain the statute meant to remedy the matter, because Use, Trust, Confidence, are used as descriptions of the beneficial interest, throughout the act. 33 H. 8, ascertains the forfeiture for treason, not with a view to trusts unexecuted; for 27 H. 8, has the word trust as synonymous to use; this statute only mentions use. Lord Hale says, on a case put after the statute, that the use, &c. By

(1) This passage is cited very incorrectly: see 1 Eden, 220, and the editor's note, ibid:

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