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Burgess

Wheate.

case take it discharged of the trust, I must suppose it no injury or absurdity at all. Volenti nonfit injuria. The creator of the trust determines to take the convenience of the trust ■with its inconvenience. It is most certain, every man who creates a trust puts his estate in the power of his trustee. If the trustee sells it for a valuable consideration without notice, no Court can relieve the owner from this misfortune; it is the result of his own act; and yet that is as shocking a perfidy in the trustee as can be; but the Court cannot interpose, as it would affect the rights of others, of third persons. But I don't know it has been determined that it shall escheat, discharged of the trusts. I shall give no positive opinion upon it. So far I may say, that unless a trust can be distinguished from an use, the most learned judges say, the right comes as a reversion, failing heirs, and that the time of escheating is, when there is a want of a tenant, the right of the lord being paramount. The trust cannot be affected by it. 1 Co. Chudleigh's Case {x); the lord comes in the post and not in the

{}er (y). Popham, S. C. (z), says, that is the reason why the aw is so, and I don't doubt the law. But there is no occasion to give a precise opinion upon it till necessary. But I don't think this is at all a necessary dilemma: the lord may not be entitled on death of cestui/ que trust without heir, because there is no equity, for he has his tenant as he had before. But possibly, there might be an equity in the other case against the lord; for if trustee died without heir, and the lord had the estate, this Court might say, You shall hold to compensate yourself for your rent and services, but we will embrace the rest for the cestuy que trust.

A difference was attempted to be made between uses and trusts. I have seen trusts invented for the blackest purposes in my experience, and to subvert the very constitution of this kingdom. But this is nothing but the abuse of both. But to try if there is or is not any difference between them, the best way is to define both: as, in order to shew the difference between one thing and another, 'tis usual to define the one and the other, and by comparing the definitions find the difference. [ * 180 Finch, 1. 2, c. %2, fo. 22 b, says, an use is, where a man has any thing to the use of another upon confidence, that the other shall take the profits. He who has the profits, has an use. The other books say an use is neither jus in re nor ad rem, &c. Now what is a trust? A confidence for which the party is without remedy, but in a Court of equity.. Lord Chief Justice does not state any difference in the metaphysical essence between an use and a trust, but that there was a difference in the law by which the one and the other was directed; and I think there is no difference in the principles, but there is a wide difference in the exercise of them. It was as much a principle

(*) Fo. 122 a.

(y) The lord by escheat is in in the post; I lain. Co. Lit. 230 a, and [n. 156] ibid. As to the per, iheper el cui, and the post.

see F. N. B. 422, 467 (4to ed.); 3 Bla. Comm. 181 j and 1 Roecoe on Real Actions, 88.

(*) 1 Co. Rcji. 139 h.

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Buroess of this Court, that the use should be considered as the land, or «>• as imitating the land, formerly as now; though the rules were

not carried formerly so far, nor the reasoning nor directions (when they were less understood) as at present. To give a [familiar] instance: the elements and principles of geometry were the same in Euclid's time as in Sir Isaac Newton's, though in the latter's time the use of them was much enlarged. It was said, the difference consists in this: that equity has shaped them much more into real estates, than before when they were uses. As now, there is tenancy per curtesy of a trust; they may be entailed; and those intails barred by a recovery. But why? Not from any new essence they have obtained, but from carrying the principle farther, quia aequitas sequitur legem: for, as between the trustee and the cestui/ que trust, this Court had jurisdiction; and I think they should have equally extended in this Court the rules and principles of uses, as well as trusts. This therefore was the effect of the equitable jurisdictions growing to maturity. Lord Bacon says, they grew to credit and strength by degrees. He says, an use is nothing but a general trust, where a man will trust to the conscience of another, rather than to his own estate and possession.

That an use and trust are the same, seems adopted by all the great persons who have presided in this Court. Gray against Gray, 29 Car. 2 (a); Lord Nottingham in a case whether a [ * 181 ] pur*chase made in the name of the son was a trust or an advancement, held it the latter, and that there should be no constructive trusts: he grounds himself upon this observation; "All the books agree, that a feoffment to a stranger without consideration, raised an use to the feoffor by implication" (A). "How can this Court justify it to the world, if it should make the law of trusts differ from the law of uses, in the same case?" They thought they were so strictly bound by it, they could not depart from it. They act under rules and checks, i. e. a discretion put upon them. As in Attorney-General against Scott (c), Lord Talbot of same opinion. In Goodwin against Winsmore (d), Lord Hardwicke of same opinion. This Court has considered the trust, as between the trustees and cestuy que trust and those claiming under them, as imitating the possession; and much more than an use was considered in this Court; but not more than the Court would have modelled uses, if uses had existed at this day. I do not see why the same determination should not be of an use, as imitating the possession, as there is now upon trusts. Would it not be a bold stride to say, this Court has considered trusts as a mere nullity and notional; and that they are to be treated just the same, as if they continued in the seisin of the creator of them or the person for whom they were made? Rules of property are not to be questioned even by the Judges, while the people continue satisfied and acquiesce in them. None but the Legislature can

(a) 1 Ch. Ca. 296, Finch. 338. cation to the father;" 1 Eden, 249.

(i) "But a feoffment to the son, with- (c) For. 138.

out consideration, raised no use by impli- (d) 2 Atk. 525.

Wheate.

alter them. Trusts have imitated lands according to the strength Burgess of this jurisdiction always. My objection to the claim in the information is, not that it is to have a trust executed as if it were land;—but it is to claim the execution of a trust, that does not exist. If there was a trust, I should consider it merely as an estate, and determine accordingly. But the creation of a trust can never affect the right of a third person. The trustee has the burden and the legal privilege. Can this Court say it is a nullity? and yet it must be so said, to take it from the trustee.—Servetur ad imum. But it cannot be said 'tis a nullity in that respect, as to a trust accepted. The *conveyance [ 182 ] shall subject the trustee to all the fruits of tenure. Though he has continued subject to all burdens when the trust subsisted, yet now it is said, as Mrs. Harding is dead, you shall be considered so no longer. As between trustee and cestui/ que trust, to say it is a nullity must be with this restriction, that he shall take no beneficial interest that the cestui/ que trust can enjoy. But any other he may. And therefore in respect to members, sheriffs, coroners, the trustee was the person who had the right to exercise it; and the Legislature was forced to interpose, before the cestuy que trust could have or enjoy that valuable privilege (e).

I can assign but one reason why that distinction between tenancy by curtesy and in dower has prevailed; and it is applicable to the reason of this case. I have heard the House of Lords was startled at the distinction, and they were told the opinion of conveyancers was so, and that, if it was altered, it might load purchasers with dower, who thought they had purchased free from it. And the Lords would not reverse the judgment, because they would not let it affect the right of a third person. Now it appears to me, that at law there can be no escheat, while there is a tenant de jure. In equity there could be none, while trusts were called uses, and a trust and an use are exactly the same. How then can I say, the lord shall lose his escheat, when any man for his own convenience puts his estate in trust. It seems, if I were to do so, that I should give law and equity, and not pronounce upon law and equity.

Two centuries have passed since uses and trusts have been admitted, and (/) I cannot find a dictum, that the Crown shall have an escheat of a trust: but I find in other books the contrary, and by one of the most learned Judges that ever adorned the profession; Hale, 247. Every writer of learning has transcribed and adopted this position, so that it is confirmed by them; viz. by attainder of felony of the feoffee) the lord shall have the land by escheat. Stanford P. C. 186. Pine's Case, 496(g); Palmer, 176(A).

(«) 7 & 8 W. 3, c. 25, s. 7. yet," Sec. US. Serj. Hill; I Eden, 252.

(/) This passage should be as follows; (g) Or Pimb's Ca., Moore, 496.

"Twocenturieshavepassedsinceuseswere (A) HiV* Ca., Hardr. 176, and not

extinguished, and since trusts have arisen; Palmer.

Burgess * In Sir George Sandys Case (i), the Court had no doubt

*• upon that part of the case applicable to the present; viz, upon

. "^A '■ forfeiture of the fee-simple. The doubt was, Whether the forfeiture should take place, on a term in gross or attendant upon the inheritance. 'Twas objected there, who should have the trust? The Court said, Sir George Sandys should hold the land discharged of the trust of the term, as in the case of a grantee of a rent dying without heirs. And this is an answer to an objection for want of right and title in the defendant. The grantee there had purchased a perpetual rent and paid for it; the grantor had sold it; the grantee dies without heirs; there's nobody to call upon the person in possession for the rent. The reason why he should hold it is, here is nobody to call upon him; therefore no man can have a better right than he. How came it not to be considered in that case, that it was a casualty, that should come to the Crown as ultimus Jusres? Yet it never was; for confiscations are hard things, and contrary to the genius of a free country; and the law of England seems to have made a confiscation in no case, but where there is a vacant possession: And there 'tis for peace sake, and that quarrels may not ensue. But where a person is possessed of a thing, without getting it against law, he has a title. The judgment in Sir George Sandys Case being an authority in point, great efforts are made to weaken the validity of it. Lord Hale's abilities have been questioned in equity. Then called a case of compassion; and that the family was concerned in it. That the contending party was the Crown;—that the Attorney-General could not drop the right, &c.—But Lord Hale determined on great principles of law; and I can't help remarking, neither bar nor bench were ever frightened at the ill consequences which might follow, which have been now mentioned. Perhaps they considered, that it was the act of the party himself. They might carve out what estates they pleased, and reserve the limitation in fee. Does this Court sit here to guard against the oscitancy, or inattention of conveyancers in making use of trusts, and not preventing an escheat to the lord? Wherever the King is not lord, his pardon would not signify; the escheat arises on the judgment. If the King

L 184 J * pardons the felon, what hinders him from suing his trustee? Attainder don't prevent his assigning his trust. 'Tis determined in outlawry it does not. 'Tis said, the King on a legal escheat shall be liable to the equity of redemption, and 'tis said to be held so by Lord Hale (k). But I don't know that has been determined. And I observe, though they agreed in opinion, they could not agree on the remedy, though they agreed in equity. I hope the Exchequer has (now) ascertained the remedy. I see an original equity impressed upon that case. The mortgage is made on condition. I would not have it under

(i) Ante, p. 140.
(A) See ante, pp. 143, 149; and 2 Hawk. P. C. c. 37, s. 54.

stood that there's any equity for the subject, that the King is Burgess not equally entitled to; but I think the arms of equity are very "•

short against the prerogative. 'Twas said, if a mortgagor die ^——>

without heir, shall the mortgagee hold the land free? (1 answer, shall it escheat to the Crown?) No, because in that case the lord has a tenant to do his services, and that is the whole he is entitled to in law and equity. What the justice might be between the mortgagee and executor, I shall not trouble myself about. I think the Crown has not an equity on which to sue a subpoena.

As to the claim of the heir ex parte materna, the estate is conveyed and the use executed in Page and Simons, and their heirs. A declared trust upon it to Mrs. Harding, her heirs and assigns, with a general declaration, which in my opinion operates no more than this, that, as between the cestuy que trust and trustees, they shall have the trust to no other use or purpose. Upon this, I concur with the Judges' certificate; that if no estate had passed to the trustee, or if that deed had never existed, the inheritance could not have descended to the heirs on the part of the mother.

Another question might have been put to the Judges, i. e. If an use by this new conveyance had been limited, and not a trust, whether it would have descended to the heirs on the part of the mother? But the law was clear and plain; and an use, whether declared or resulting, must ensue the nature of the land, and retain the same quality; and whether it be expressed * or resulting, makes no manner of difference. There- [ *185 ] fore they did not encumber the Judges with that. It had been settled in Martin and Strachanil), Abbot (m), and Freestone («). 2 Roll. Abr. 780. Uses at common law, and trusts now, must ensue the nature of the land, as in the case of borough English and gavelkind lands (o), they must ensue the nature of those inheritances. In the case of a resulting use, the true reason is, that 'tis never out of the grantor. In the case of trust 'tis the same—'tis the old trust, therefore I think the trust would not go to the heir of the part of the mother; (in lands descended ex parte paternd) which, without a re-conveyance, could never have a different descendible quality. In this case primd facie it was considered, that nothing descended to the maternal heir, for the information says, "nothing descended to the heir of the mother's side."

But then it is said, if you will not make the deed of 1718 and fine a mere nullity, it alters the use, and that it vests an use and trust in Mrs. Harding as a purchasor. I wish I could find a ground to say the use is changed; but I cannot say it; because the way in which this bars the lord's right is not by changing the use, but by bringing a tenant on the land, which changes the lord's escheat; and though the old use is extinct,

(/) 2 Stra. 1179, 5 T.R. 107, n. See (n) Godbold v. Freestone, 3 Lev. 406,

ante, 129, n. (/). ante, ibid. , y0~

(m) Abbot v. Burton, Salk. 590, ante, (o) Fawcetl v. Lord Lonsdale, 2 Ves. r

126, n. (e). Sen. 304.

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