person, either with such person, or with some one of the family of such person above the age of sixteen years,) every such person shall pay to the fandlord signing such notice, or to his heirs, executors, administrators, or assigns, all and every sums and sum whatever due or to grow due for rent from such person to the lessee so having assigned or sub-letten, with such consent as aforesaid, or to his heirs executors or administrators; and from and after such notice as aforesaid, and until the satisfaction of all the sums due to the person giving such notice, on account of all rent due from such lessee having so assigned or sub-letten as aforesaid, the receipt of the person giving such notice, or his heirs, executors, administrators, or assigns, shall be a full and sufficient discharge to the person or persons in the occupation of such lands or tenements who shall have paid such rent, and to his and their heirs executors or administrators, against the person having so assigned or sub-letten, or his heirs executors or administrators; and the person or persons so having paid such rent, or his or their heirs executors or administrators, or his or their goods chattels or effects, lands or tenements, shall not be subject or liable to the payment of any rent, or to any distress or other remedy for the same, to any person under whom such person or persons may hold by reason of any such assigning or sub-letting as aforesaid. VIII. And be it further enacted, That from and after the delivery of such notice as aforesaid, and until the satisfaction of all rent and arrears of rent due to the party giving such notice, or his heirs, executors, administrators, or assigns, he and they shall have and enjoy all such rights powers and authorities for the recovering and enforcing the payment of any rent due and payable by any person or persons occupying the lands so assigned or sub-let as aforesaid, as could or might have been enjoyed, or as could or might have been legally exercised or enforced against any such person or persons respectively by the party so assigning or sub-letting as aforesaid; any thing in this Act, or any law usage or custom to the contrary notwithstanding. IX. And be it further enacted, That from and after the first day of June one thousand eight hundred and twenty-six it shall not be lawful to or for any person or persons, his or their heirs, executors, administrators, or assigns, who shall hold any lands or tenements under any lease or agreement made before the said first day of June one thousand eight hundred and twenty-six, containing any condition or covenant against sub-letting or assigning of the same, nor for any person or persons, his or their heirs, executors, administrators, or assigns, who shall hold any lands or tenements under any lease or agreement which shall be made or entered into any time subsequent to the said first day of June one thousand eight hundred and twenty-six, not containing a clause expressly authorizing and empowering the lessee or tenant to assign or sub-let (other than a lease for a term of ninety-nine years or upwards, or a lease for lives or years with a covenant for perpetual renewal, or a lease held immediately under any person or bodies corporate or ecclesiastical, or held under any person or persons deriving from the immediate lessee of such persons or bodies corporate or ecclesiastical, with a toties quoties covenant for renewal), to devise such lands or tenements, or any part thereof, by his or their last will and testament, so as to portion or divide such lands or tenements to or among several persons: Provided always, that nothing in this Act contained shall extend or be construed to extend to prevent the inheritance or distribution of any lands or tenements to or among any person or persons who would be entitled thereto according to law, upon the decease of any person or persons dying intestate SCHEDULE to which this Act refers. FORM of Notice from a Superior Landlord to the Sub-tenant of such Landlord's iminediate Lessee. A. B. TAKE Notice, That I, the undersigned C. D, Superior Landlord of the lands and tenements under-letten to you by E. F, da hereby require you to pay to me the said C. D., or to my heirs, executors, administrators, or assigns, all rent and arrears of rent payable by you for the said lands and tenements, until all sums due from the said E. F. for his rent of the said lands and tenements shall be fully paid and satised to me, or my heirs, executors, administrators, or assigns. Witness my hand, this day of C. D. To A. B. of No. XIX. 7 Geo. IV. c. 29. Landlord, giving Notice, shall have Power to Re. cover Rents. Lessees of Lands held under Lease not authorizing the Sub-letting (except Leases for 99 Years, &c.) shall not devise to more than One Person. Not to affect PART II. CLASS IX. 1 Rich. III. c. 1. 27 H. 8. c. 10. 418, 429. 1 Anders. 333. 13. 26 H. 8, f. 2. Uses. [No. I.] 1 Richard III. c. 1.—All Acts made by or against Cestuy que use shall be good against him, his Heirs and Feoffees in Trust. The several Inconveniences of secret Feoffments. The Estate of Tenant in Tail saved.* FIRST, because that by secret and unknown feoffments, great unsurety trouble costs and grievous vexations do daily grow betwixt 'the King's subjects, insomuch that no man that buyeth lands, tenements, rents,services, or other hereditaments, nor women which have jointures or 'douers in any lands tenements or other hereditaments, nor the last will of men to be performed, nor leases for term of life or of years, nor annuities 'granted to any person or persons for their services for term of their lives or otherwise, be in perfect surety, nor without great trouble and doubt of the same, by reason of such privie and unknown feoffments:' For the remedy whereof it is ordained established and enacted, by the advice of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by authority of the same, That every estate feoffment, gift, release, grant, leases, and confirmations, of lands, tenements, rents, services, or other hereditaments, made or had or hereafter to be made or had by any person or persons being of full age of whole memory at large and in dures to any person or persons, and all recoveries and executions had or made, shall be good and effectual to him to whom it is so made had or given, and to all other to his use, against the seller, feoffor, donor, or granter, of the same, and against the sellers, feoffors, donors, or granters, and his and their heirs, claiming the same only as heir or heirs to the same sellers, feoffors, donors, or granters, and every of them, and against all other having or claiming any title or interest in the same, only to the use of the same seller, feoffor, donor, or granter, or sellers donors or granters, or his or their said heirs at the time of the bargain, sale, covenant, gift, or grant made; saving to every person or persons such right title action or interest, by reason of any gift in tail thereof made, as they ought to have if this Act had not been made. This Statute, after having been diregarded from the passing of the Statute of Uses, 27 Hen. VIII. for a period of two centuries and a half, was relied upon in argument as applicable to terms of years, in the case of Goodtitle v. Jones, 7 T. R. 47. It was held not to apply to the cir cumstances of that case; but in Blake v. Foster, 8 T. R. 494, it was referred to by Lawrence, J. as still in force. Mr. Sugden has, in a note to Gilbert on Uses and Trusts, p. 67, adduced very satisfactory reasons for holding that it has not now any operation whatever. [No. II.] 19 Henry VII. c. 15.-Several Charges imposed upon the Lands and Persons of Cestuy que use. The several Inconveniences that many did receive by Cestuy que use. The Lands of Cestuy que use shail be put in Execution for his Debt due by Judgment, &c. The Lands of Cestuy que use shall satisfy the Chief Lord of his Relief Heriot and other Duties. Cestny que use shall have such Advantages as he might have had if he had been Tenant of the Land. Cestuy que use (being a Bondman) the Land may be seised by his Lord. [Obs. since st. 27 H. VIII. c. 10.] [No. III. ] 27 Henry VIII. c. 10.-An Act concerning Uses and Wills. (1) No. II. 19 H. VII. c. 15. 1 Co. f. 123. 1 Leon. 14. 2 Leon. 16. Lane, 93. 3 Bulst. 185, 252. WHERE by the common laws of this realm, lands tenements and 27 H. VIII. hereditaments be not advisable by testament, nor ought to be c. 10. 'transferred from one to another but by solemn livery and seisin, R. 3. c. 1. ' matter of record, writing sufficient made bona fide without covin or 'fraud, yet nevertheless divers and sundry imaginations, subtle inven'tions and practices have been used, whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments fines recoveries and other assurances craftily made to secret uses intents and trusts; and also by wills and testaments sometime made by nude parole and words, sometime by signs and tokens, and sometime by (1) It is not the Editor's intention to enter into a dissertation upon the extensive system of law which has arisen from the present Statute, and which forms one of the most important branches of the doctrine of real property. The general doctrines arising from the Statute are exhibited in Lord Bacon's Reading on the Statute-in Gilbert's Law of Uses and Trusts Mr. Sander's Treatise on the same subject Mr. Cruise's Chapters on those subjects in his Digest of the Law of Conveyances, and which are also published in a separate form-Mr. Sugden's Treatise on the Law of Powers. The notes of the gentleman last mentioned have given great value to his edition of Gilbert; but it certainly would have been more satisfactory to the present Annotator, if, in lieu of that edition, he had presented the public with an original work upon the subject, according to his own arrangement, availing himself of the work which he has edited as supplying a valuable repertory of materials. For a less extensive view of the subject, it is impossible that any thing could be offered more satisfactory than the information contained in Blackstone's Commentaries, vol. 11. ch. 20, P. 327. The well-known observation that a Statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance, Vaughan 50. 1 Atk. 591. 2 Bl. Com. 336, is certainly not quite warranted by the fact, as it is manifest, that in consequence of the Statute, many modifications of real property have been introduced for the convenience of families, of which the common law was not susceptible; and how little soever the retention of what was formerly known by the name of Uses, under the substituted appellation of Trusts, may have been warranted upon the true principles of judicial construction, it certainly has been attended in many respects with considerable practical convenience. Godbolt, 299, pl. 416. One of the most important questions, with relation to the doctrine of Uses, is upon the effect of a limitation to such uses as a party shall appoint, and in default of appointment; and in the mean time until appointment to himself and his heirs, with respect to the claim of dower against the appointee under the power. The great weight of professional and judicial opinion is certainly in favour of the validity of the appointment, as opposed to the claim of dower;-the discussion on this point by Lord Eldon, in the case of Maun. drell v. Maundrell, 10 Ves. 246, would seem to preclude all reasonable hesitation upon the question; but from a deference to other opinions which had been incidentally thrown out to the contrary, his Lordship concluded with treating it as a question still open to inquiry; and this mode of conveyancing, which was formerly very general, has, from the doubts which have been suggested respecting it, entirely given way to a limitation with the intervention of a trustee, by which the right of dower is absolutely prevented. Nothing certainly can be more striking than the inconsistency of the doctrine which subjects trust estates to the right by courtesy, while it exempts them from the claim of the dower. The following observations of Lord Redesdale, in D'Arcy v. Blake, 2 Scholes & Lefroy,388, seem to give the true account of the origin of the distinction: "The difficulty in which the Courts of Equity have been involved with respect to dower, I appreliend originally arose thus: they had assumed as a principle in acting upon trusts, to follow the law; and according to this principle, they ought in all cases where rights attached as legal estates, to have attached the same rights upon trusts; and consequently to have given dower of an equitable estate. It was found, however, that in cases of dower, this principle, if pursued to the utmost, would affect the titles to a large proportion of estates in the country, for that parties had been acting on the footing of dower upon a contrary principle, and had supposed, that by the creation No. III. 27 H. VIII. c. 10. writing, and for the most part made by such persons as be visited with 'sickness in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which frau'dulent feoffments, fines, recoveries, and other like assurances to uses 'confidences and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards marriages reliefs hariots escheats, aids pur fair fitz chivalier, & pur file marier, and and in all cases, is the mere result of a deficiency of style in framing the instruments under which the estate is derived: this power does not exist with respect to trust or copyhold estates, and I apprehend that it would be an improvement in the law to dispense with the services of the parties intrusted with the imaginary duties of " making entries and bringing actions as occasion shall require," for the purpose of supporting contingent remainders, by a general provision, that no estate or interest in remainder should be affected or prejudiced by any fine feoffment or other wrongful act of tenant for life, or by any union of the tenancy for life with the ulterior reversion. This principle was acted upon by statute 10 & 11 W. 3. c. 16. to enable posthumous children to take estates as if born in their parents' life time; (ante Class I. No. 22.) previous to which a limitation to trustees was necessary for the preservation of an intermediate freehold; and it is impossible to suppose that any prejudice can arise from an alteration of the law which will have the effect of preventing the intentions of the party from whom the property is derived being defeated in consequence of the omission of a mere technical expression. Besides the general mischief already alluded to, against which such a provision would afford a remedy, the mischief of the power of devise by tenant in remainder being defeated by a fine of the preceding tenaut for life would be effectually obviated. of a trust, the right of dower would be prevented from attaching. Many persons had purchased under this idea; and the country would have been thrown into the utmost confusion, if Courts of Equity had followed their general rule with respect to trusts in the cases of dower. But the same objection did not apply to tenancy by the courtesy; for no person would purchase an estate subject to the tenancy by the courtesy, without the concurrence of the person in whom that right was vested. The consequence of adopting the present mode of conveyancing, in preference to that first mentioned, has perhaps not been sufficiently attended to, with respect to its influence on the comforts of families, and the fair expectations of persons engaged in marriage; for although a freedom of disposition is an important object in the acquisition of property, the affording to a widow the original provision of the law, when the husband has shown no intention to the contrary, would be much more beneficial to the community than the mere advantage to the heir (a person probably unknown to his ancestor) upon the opposite system. Considering the reasonableness of the provision itself on the one hand, and the disadvantage which arises from rendering the right to that provision so absolute as not to be subject to the controul of the owner of the property-and the consequent expedients leading to an absolute deprivation of the right, on the other-the subject seems to be fairly worthy of legislative attention; and the Editor submits that it would be very beneficial to provide, that in all cases it should be lawful for any person seised of an estate in fee to dispose thereof; and that the same should be subject to all his debts and charges, free from any claim of dower, with the exception of estates to which the title shall arise by descent or devise or marriage settlement during the coverture; and by way of compensation to admit widows to their dower of trust estates, subject to any dispositions of the husband. Perhaps it might not be an injudicious addition (although the observation does not arise immediately out of the subject which is properly before me) to extend the benefit of dower and courtesy to the cases of freehold leases; and to dispense with the necessity of having issue as a condition for tenancy by the courtesy. The power of a party being only tenant for life by a wrongful conveyance such is a fine or feoffment, to acquire an absolute title to the inheritance to the prejudice of those who may be evidently entitled to ulterior intents, is certainly no very desirable ingredient of our legal system: The Legislature has in the statutes forming one of the preceding Classes, (Vide Class VI.) applied a remedy to the inconvenience arising from estates in trust being vested in infants or lunatics. It would be a very beneficial extension of the same principle to provide for the case of the absence or uncertainty of the person in whom such trust estates were vested, by enabling courts of equity upon petition to authorise a proper officer to execute a conveyance of the trust estate. This subject might require distinct consideration as applied to the cases of mere trusts as instruments of conveyancing, and trusts attended with actual confidence in the individuals; but I apprehend that considerable benefit, unaccompanied with any inconvenience, would arise from making the provision general. The principle of such a provision has been already applied by the Legislature to the case of personal estates, by stat. 36 Geo. III. c. 90, with respect to money in the funds: and I find that by the Irish statute 28 Geo. III. c. 35. provisions of the nature here suggested have been actually adopted. 2 Gabbett, 358. No. III. c. 10. scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or 'executions for their rights titles and duties; also men married have lost 27 H. VIII. their tenances by the curtesy, women their dowers, manifest perjuries by trial of such secret wills and uses have been committed; the King's Highness hath lost the profits and advantages of the lands of persons 1 Roll. 260, attainted, and of the lands craftily put in feoffments to the uses of 327, 385. aliens born, and also the profits of waste for a year and a day of lands 2 Roll. 170, ⚫ of felons attainted, and the lords their escheats thereof; and many 335, 336. ⚫ other inconveniences have happened, and daily do increase among the Poph. 21, 70. 'King's subjects to their great trouble and inquietness, and to the utter 'subversion of the ancient common laws of this realm; for the extirping ⚫ and extinguishment of all such subtle practised feoffiments fines recoveries abuses and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the King's Highness or any other his subjects of this realm, ⚫ shall not in any wise hereafter by any means or inventions be deceived the use. 1 Leon. 258. 2 Leon, 6, 15. & Co. 94. damaged or hurt, by reason of such trusts uses or confidences: It may The possession please the King's most royal Majesty, that it may be enacted by his of Lands shall Highness, by the assent of the Lords Spiritual and Temporal and the be in him or Commons in this present Parliament assembled, and by the authority of them that have the same, in manner and form following; that is to say, That where any person or persons (2) stand or be seised, (3) or at any time hereafter shall happen to be seised, of and in any honours castles manors lands tenements rents services reversions remainders or other hereditaments, to the use confidence or trust of any other person or persons, or of any body politick, (4) by reason of any bargain sale feoffment fine recovery covenant contract agreement will or otherwise, by any manner means whatsoever it be; that in every such case, all and every such person and persons and bodies politick, that have or hereafter shall have any such use confidence or trust in fee-simple fee-tail for term of life or for years or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised deemed and adjudged in lawful seisin estate and possession of and in the same honours castles manors lands tenements rents services reversions remainders and hereditaments, with their appurtenances, to all intents constructions and purposes in the law of and in such like estates as they had or shall have in use trust or confidence of or in the same; and that the estate title right and posses- 1180. sion that was in such person or persons that were or hereafter shall be seised of any lands tenements or hereditaments, to the use confidence trust of any such person or persons, or of any body politick, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use confidence or trust, after such quality manner form and condition as they had before, in or to the use confidence or trust that was in them. (2) The King or Queen Regent cannot be seised to a use-Gilb. [6] 11; nor the Queen Consort. Bac. Uses 59. And a corporation cannot take by conveyance to the use of another; but it seems that they may pass their own estates by conveyances operating only by the Statute of Uses---as by the common conveyance of lease by way of bargain and sale and release; and that the usual precautions of conveying by lease at common law, and actual entry, as the foundation of a release, or by feoffment, are not necessary. See Sug. Note Gilb. [5.] (3) By force of this word, which only extends to freehold interests, the statute does not affect assignments of terms of years, although a term may be newly created by conveyance operating under the statute, as is evident from the common case of a bargain and sale for a year. See Gilb. [79.] The purpose of vesting a term of years in a per 218. 1 Anders. 337. 346. Dyer, f. 115, or 235, 274, 309, 340, 349, 362, 369. Co. 1 Inst. 237, a. 272, a. 287, a. Co. Lit. 187, b. son already possessed thereof with others as jointtenants, (as in the usual case of a change of trustees for public institutions) can only be accomplished by a previous assignment to a third person, and from such person to the original assignor in conjunction with others. This double transfer only occasions the expence of an additional and very short deed, for the re-transfer is invariably made by indorsement.---Sug. Gilb. [78] 150. (4) Money given by the governors of a hospital is a good consideration to raise a use to them in their public capacity; and though a body politick cannot be seised to a use, yet upon a bargain and sale to them, a trust may be limited that they shall dispose of the rents and profits of the same amongst the poor of the said Corporation. Gilb. [286.] |