to the use of his intended wife and her eldeft fon for their lives, upon the marriage the wife takes the whole use in feveralty; and, upon the birth of a son, the use is executed jointly in them both. This is fometimes called a fecondary, sometimes a fhifting, ufe. And, whenever the use limited by the deed expires, or cannot veft, it returns back to him who raised it, after fuch expiration or during such impoffibility, and is stiled a refulting ufe. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the ufe of her firft-born fon in tail: here, till he marries, the use refults back to himself; after marriage, it is executed in the wife for life; and, if she dies without iffue, the whole results back to him in fee ". It was likewise held, that the uses originally declared may be revoked at any future time, and new ufes be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically mentioned". And, in cafe of fuch a revocation, the old uses were held instantly to cease, and the new ones to become executed in their ftead ×. And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon obferves) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards. By this equitable train of decifions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical fcruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that 66 no use could be limited on a use," and that when a man bargains and fells his land for money, which raises a ufe by implication to the bargainee, the limitation of a farther use to another perfon is repugnant and therefore t Bacon of uses. 35T u Ibid. 350. 1 Rep. 120. w See pag. 327. x Co. Litt. 237. z Der. 155. void. Book II. void. And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in truft for C and his heirs, they held that the statute executed only the first use, and that the fecond was a mere nullity: not adverting, that the instant the first use was executed in B, he became seised to the use of C, which fecond use the ftatute might as well be permitted to execute as it did the firft; and fo the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last ceftuy que ufe. Again; as the ftatute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interefts, whereof the termor is not feifed, but only possessed; and therefore, if a term of one thousand years be limited to A, to the use of (or in truft for) B, the ftatute does not execute this use, but leaves it as at common law. And laftly, (by more modern refolutions) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this ufe is not executed by the ftatute: for the land must remain in the trustee to enable him to perform the trust a. Of the two more antient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial intereft; and, in the fecond, the ceftuy que ufe of the term was exprefsly driven into the court of chancery to seek his remedy and therefore that court determined, that though these were not uses, which the ftatute could execute, yet still they were trusts in equity, which in confcience ought to be performed. To this the reafon of mankind affented, and the doctrine of uses was revived, under the denomination of trusts: and thus, by this ftrict conftruction of the courts of law, a ftatute made upon great deliberation, and introduced in the moft folemn manner, has had little other effect than to make a flight alteration in the formal words of a conveyance f. a 1 And. 37. 136. b Bacon law of ufes. 335. Jenk. 244. c Poph. 76. Dyer, 369. di Equ. Caf. abr. 383, 384. e 1 Hal. P. C. 248. f Vaugh. 50. Atk. 591. How HOWEVER, the courts of equity, in the exercife of this new jurifdiction, have wifely avoided in a great degree those mischiefs which made uses intolerable. They now confider a trust-estate (either when expressly declared or refulting by necessary implication) as equivalent to the legal ownership, governed by the fame rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long feries of uniform determinations, for now near a century past, with some affistance from the legislature, they have raised a new fyftem of rational jurifprudence, by which trufts are made to answer in general all the beneficial ends of ufes, without their inconvenience or frauds. The trustee is confidered as merely the inftrument of conveyance, and can in no fhape affect the eftate, unless by alienation for a valuable confideration to a purchasor without notice; which, as cefluy que ufe is generally in poffeffion of the land, is a thing that can rarely happen. The truft will descend, may be aliened, is liable to debts, to forfeiture, to leafes and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to fome hafty precedents", than from any well grounded principle. It hath also been held not liable to efcheat to the lord, in confequence of attainder or want of heirs : because the trust could never be intended for his benefit. But let us now return to the statute of uses. THE only fervice, as was before obferved, to which this ftatute is now configned, is in giving efficacy to certain new and fecret fpecies of conveyances; introduced in order to render tranfactions of this fort as private as poffible, and to fave the trouble of making livery of feifin, the only antient conveyance of corporeal freeholds: the fecurity and notoriety of which public inveftiture abundantly overpaid the labour of going to the land, or of fending an attorney in one's stead. But this now has given way to g 2 Freem. 43. h i Hardr. 494. Burgefs and Wheate I Chanc, Rep. 254.2 P. Wms, 640. Hil. 32 Geo. II. in Canc. VOL. II. X 12. A TWELFTH 12. A TWELFTH fpecies of conveyance, called a covenant to ftand feised to uses: by which a man, feifed of lands, covenants in confideration of blood or marriage that he will stand feised of the fame to the use of his child, wife, or kinfman; for life, in tail, or in fee. Here the ftatute executes at once the estate; for the party intended to be benefited, having thus acquired the ufe, is thereby put at once into corporal poffeffion of the land *, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon fuch weighty and interesting confiderations as thofe of blood or marriage. 13. A THIRTEENTH fpecies of conveyance, introduced by this ftatute, is that of a bargain and sale of lands; which is a kind of a real contract, whereby the bargainor for fome pecuniary confideration bargains and fells, that is, contracts to convey, the land of the bargainee; and becomes by fuch bargain a trustee for, or seised to the use of, the bargainee; and then the statute of uses completes the purchase1: or, as it hath been well expreffed ", the bargain first vests the use, and then the ftatute vefts the poffeffion. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law afsurances were calculated to give; to prevent therefore clandeftine conveyances of freeholds, it was enacted in the fame feffion of parliament by ftatute 27 Hen. VIII. c. 16. that fuch bargains and fales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within fix months in one of the courts of Westminster-hall or with the cuftos rotulorum of the county. Clandeftine bargains and fales of chattel interests, or leases for years, were thought not worth regarding, as fuch interefts were very precarious till about fix years before; which also occasioned them to be overlooked in framing the ftatute of ufes: and therefore fuch bargains and fales are not directed to be enrolled. But how impoffible is it to k Bacon. Use of the law. 151. 1 Ibid. 150. m Cro. Jac. 696. foresee, forefee, and provide againft, all the confequences of innova tions! This omiffion has given rise to 14. A FOURTEENTH fpecies of conveyance, viz. by lease and release; first invented by ferjeant Moore, foon after the ftatute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr Noy) have formerly doubted it's validity. It is thus contrived. A leafe, or rather bargain and fale, upon fome pecuniary confideration, for one year, is made by the tenant of the freehold to the leffee or bargainee. Now this, without any enrollment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the ftatute immediately annexes the poffeffion. He therefore being thus in poffeffion, is capable of receiving a release of the freehold and reverfion; which we have seen before P, must be made to a tenant in poffeffion : and accordingly, the next day, a release is granted to him% This is held to fupply the place of livery of seifin; and so a conveyance by leafe and release is faid to amount to a feoffment'. 15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we fhall fpeak in the next chapter: and, 16. DEEDS of revocation of uses; hinted at in a former page, and founded in a previous power, referved at the raifing of the ufes', to revoke fuch as were then declared; and to appoint others in their ftead, which is incident to the power of revocation". And this may fuffice for a specimen of conveyances founded upon the ftatute of uses; and will finish our observations upon fuch deeds as ferve to transfer real property. |