335 fcruples, which the judges found it hard to get over, restored it with tenfold increafe. They held, in the first place, that "no use could be limited on a ufe," and that when a man bargains and fells his land for money, which raises a use by implication to the bargainee, the limitation of a farther ufe to another perfon is repugnant, and therefore [336] void. And therefore, on a feoffment to A and his heirs, to the ufe of B and his heirs, in truft for C and his heirs, they held that the ftatute executed only the firft ufe, and that the fecond was a mere nullity: not adverting, that the inftant the firft ufe was executed in B, he became feifed to the ufe of C, which fecond use the ftatute might as well be permitted to execute as it did the firft; and fo the legal eftate might be iuftantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last ceftuy que ufe (8). Again; as the ftatute mentions only fuch perfons as were feifed 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 poffefed; and therefore, if a term of one thousand years be limited to A, to the ufe of (or in trust for) B, the ftatute does not execute this ufe, but leaves it as at common law. And laftly, (by more modern refolutions) where lands are given to one and his heirs, in truft to receive and pay over the profits to another, this ufe is not executed by the ftatute; for the land muft remain in the trustee to enable him to perform the truft 4(9). z. Dyer. 155. a1 And. 37. 136. b Bacon law of ufes. 335. Jenk. 244. Poph. 76. Dyer. 369. (8) It is the practice to introduce only the names of the trustee and the colui que trajt; the estate being conveyed to A and his heirs, to the ufe of A and his heirs, in truft for B and his heirs; and thus this important flatute has been effectually repealed by the repetition of half a dozen words. (9) I should be inclined to think that the cafe as expreffed by the learned Judge would be conftrued an ufe executed by the ftatute. In the authority referred to in Eq. Ca. Abr. 38, the truflees were Of the two more antient distinctions the courts of equity quickly availed themselves. In the first cafe it was evident, that B was never intended by the parties to have any beneficial interest; and, in the second, the ceftuy que ufe of the term was exprefsly driven into the court of chancery to feek his remedy and therefore that court determined, that though these were not ufes which the ftatute could execute, yet ftill they were trufts in equity, which in confcience ought to be performed. To this the reafon of mankind affented, and the doctrine of ufes 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. HOWEVER, the courts of equity, in the exercife of this [ 337 ] new jurisdiction, have wifely avoided in a great degree those mischiefs which made ufes intolerable. The ftatute of frauds, 29 Car. II. c. 3. having required that every declaration, affignment, or grant of any truft in lands or hereditaments, (except fuch as arife from implication or conftruction of law) fhall be made in writing figned by the party, or by his written will; the courts now confider a truft-eftate (either when exprefsly declared or refulting by such implication) as equivalent to the legal ownership, governed by the fame rules of property, and liable to every charge in equity, which the f Vaugh. 50. Atk. 591. e 1 Hal. P. C. 248. first to pay legacies and annuities, and then to pay over the furplus to a married woman for her separate ufe. To prevent a trust from being executed by the ftatute in cafes of this kind, it feems neceffary that the trustees fhould have fome control and difcretion in the application of the profits of the eftate, as to make repairs, or to provide for the maintenance of the ceftui que truft. x Bro. 75. 2 T. R. 444. Where there is no fuch special circumstance in the grant, it appears to be equivalent to a direction to the trustees to permit the celui que iruft to take the profits of the eflate, which is fully established to be an ufe executed. Eq. Ca. Abr. 383. Cc 2 other other is fubject to in law: and, by a long feries of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurifprudence, by which trufts are made to anfwer 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 shape affect the eftate, unless by alienation for a valuable confideration to a purchafor without notice 8; which, as ceftuy que ufe is generally in poffeffion of the land, is a thing that can rarely happen. The truft will defcend, may be aliened, is liable to debts, to executions on judgments, ftatutes, and recognizances, (by the exprefs provifion of the statute of frauds) 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 (10). It hath alfo been held not liable to efcheat to the lord, in confequence of attainder or want of heirs: because the truft could never be intended for his benefit. But let us now return to the ftatute of uses. g 2 Freem. 43. hiChanc. Rep. 254. 2 P.Wms.640. i Hard. 494. Burgefs and Wheat. Hil. 32 Geu, II. in Canc. (10) It has been decided, that when the legal and equitable eftates meet in the fame perfon, the truft or equitable estate is merged in the legal eftate; as if a wife should have the legal eftate and the hufband the equitable; and if they have an only child, to whom these eftates defcend, and who dies inteftate without iffue, the two eftates having united, the defcent will follow the legal estate, and the eftate will go to an heir on the part of the mother: and thus, which appears ftrange, the beneficial intereft will pass out of one family into another, between whom there is no connexion by blood. Doug. 741. Before the ftatute of uses there was neither dower nor tenancy by the curtesy of an ufe, p. 331. It is therefore an unaccountable inconfiftency, that, fince the ftatute, the husband should have curtesy of a truft eftate, and that the wife should out of a fimilar eftate be deprived of dower, See ante, p. 132. n. 11. THE 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 12. A TWELFTH fpecies of conveyance, called a covenant [ 338 ] to fland feifed to ufes: by which a man, feised of lands, covenants in confideration of blood or marriage that he will stand feifed of the fame to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the ftatute executes at once the eftate; 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 feeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon fuch weighty and interefting confiderations as those of blood or marriage. 13. A THIRTEENTH fpecies of conveyance, introduced by this ftatute, is that of a bargain and fale 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 to the bargainee; and becomes by fuch a bargain a trustee for, or feifed to the ufe 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 statute vests the poffeffion. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law affurances were calculated to give; to prevent therefore clandeftine con veyances of freeholds, it was enacted in the fame feflion of parliament by statute 27 Hen. VIII. c. 16. that fuch bargains m Cro. Jac. 696. k Bacon. Use of the law. 151. Ibid. 150. Book II. and fales fhould not enure to pass a freehold, unless the fame 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 interefts, or leases for years, were thought not worth regarding, as fuch interests were very precarious till about fix years before"; which alfo occafioned them to be overlooked in framing the ftatute of uses and therefore fuch bargains and fales are not directed to be enrolled. But how impoffible it is to [ 339] forefee, and provide againft, all the confequences of innovations! This omiffion has given rife to 14. A fourteenTH fpecies of conveyance, viz. by leafe and release, firft invented by ferjeant Moore, foon after the ftatute of uses, and now the most common of: any, and therefore not to be fhaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I.) 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 feifed 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, 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 feifin: and fo a conveyance by leafe and release is said to amount to a feoffment'. 15. To thefe may be added deeds to lead or declare the ufes of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and, 16. DEEDS of revocation of ufes; hinted at in a former page', and founded in a previous power, referved at the raif n See pag. 142. P pag. 324. 4 See appendix. No. II. § 1, 2. |