(C) Right of Presentation to the Livings of Papists. comes recusant convict, and then the statute is extended, the university notwithstanding shall have the presentment. Sir William Jo. 26, Standen v. The University of Oxford and Whitton, S. P. arg.; 10 Rep. 56 a. [It was determined by Lord Hardwicke, on the statute of Anne hereafter mentioned, that that statute doth not make the whole trust void, but only the turn upon an avoidance; so that if the party conforms before any avoidance happens, nothing can vest in the universities. Cottington v. Fletcher, 2 Atk. 155.] 4. How Trusts made to prevent their Right of Presentation may be discovered. Where secret trusts are made to prevent their right of presentation, the following statutes point out a method for discovering such trusts. By 1 W. & M. c. 26, § 3, trustees of recusants are disabled to present or grant any avoidance of any ecclesiastical living, free school, or hospital, and the respective universities are to have the presentations. And if any trustee, mortgagee, or grantee of any avoidance shall present, &c., to any such ecclesiastical living, &c., where the trust shall be for any recusant convict, or disabled, without giving notice of the avoidance in writing to the vice-chancellor of the university, to whom the presentation shall belong, within three months after the avoidance, he shall forfeit 5007. to the university to which the presentation, &c., shall belong. §7. Persons making the declaration, and taking the oaths before the justices at the quarter-sessions, where their names are recorded, shall be discharged of the disability. Farther, by 12 Ann. st. 2, c. 14, § 2, presentor is to be examined by the ordinary, whether he be a papist or a trustee for such. § 3. Presentee is to be examined upon oath by the ordinary, if he knows, or believes the presentor to be a papist, or a trustee for a papist, or for the children of such, or any other person; and if he answers not directly, the presentation to be void. § 4. Universities and their presentees may bring a bill in Chancery for discovery, (a) and upon neglecting to answer, the bill to be taken pro confesso. (a) A bill founded upon this statute can only be for discovery, not for relief. So determined by Lord Talbot, suprà, Vol. vii. p. 393. § 5. Patrons and their clerks, contesting the right of the university in quare impedit, may be examined in court, or by commission or affidavit, as the court shall think proper, as to secret trusts; and if upon discovery who is the cestui que trust, he shall, upon a rule made for him to come into court, or before commissioners, to make the declaration against transubstantiation, neglect so to do, he shall be esteemed convict in respect to his presentation. It was moved in a quare impedit, that the plaintiff claiming right of patronage might be examined upon oath touching secret trusts for papists pursuant to this act, and a commission for such examination was ordered to issue, directed to the three prothonotaries, or any two of them. Barnes, King v. Bishop of Carlisle, and Masters and Scholars of the University of Cambridge. See likewise where the court ordered a commission for the like purpose, and directed the prothonotary to strike the commissioners' names, and to settle the interrogatories. Barnes, Rutter v. Bishop of Hereford and the University of Cambridge. § 6. And the answer of such patrons, and the person for whom they are intrusted, and his and their clerks, and their examinations and affidavits K (C) Right of Presentation to the Livings of Papists. taken as aforesaid by order of any court, or by the ordinary, shall be allowed as evidence against such patron so presenting, and his clerk. § 8. No lapse shall incur nor plenarty be a bar, till three months after the answer put in, or the bill taken pro confesso, or the prosecution deserted, provided such bill be exhibited before any lapse incurred. § 10. Upon confession or discovery of trust, the production of deeds may be enforced. Lastly, The 11 G. 2, c. 17, § 5, enacts, That every grant of any advowson of any ecclesiastical living, school, hospital, or donative, and every grant of any avoidance thereof, by any papist or person making profession of the popish religion, or any mortgagee or person intrusted for any papist, &c., shall be void, unless such grant shall be made bonâ fide, and for a full consideration, to a protestant purchaser, and only for the benefit of protestants; and such grantee shall be deemed a trustee for a papist, and they and their presentees shall be compelled to make such discovery relating to such grants and presentations as by the act 12 Ann. st. 2, c. 14, is directed. And every devise to be made by any papist of any such advowson, &c., with intent to secure the benefit thereof to the heirs or family of such papist, shall be void; and such devisees and persons claiming under such devisees, and their presentees, shall be compelled to discover whether such devisees were not made with the said intent. See Vol. vii. tit. Papists, (C). 5. How their Right of Presentation may be divested. When once the presentation pro hâc vice is vested in the university, though the recusant conforms himself afterwards or dies, yet the university shall present. 10 Rep. 58 a, in the Chancellor, &c., of Oxford University's case. So likewise if a recusant is attaint of felony or præmunire, the interest of the university shall not be divested. Per Hutton, Sir William Jo. 26, in the case of Standen v. The University of Oxford and Whitton. 6. How it may be avoided. The 1 W. & M. sess. 1, c. 26, § 6, enacts, that the benefice to which persons are presented by the universities for the recusancy of the patron, shall become void in case of absence from the same above the space of sixty days in any one year. 111 USES AND TRUSTS. @PART I.-OF USES. A USE at common law was an equitable right which he who conveyed a legal estate to another reserved to himself, upon trust and confidence that the person to whom he so conveyed it, would nevertheless suffer hin to take the rents and profits of the land, and that he would execute estates according to his direction. Gilb. Law of Uses, 175; 1 Rep. 121, Chudleigh's case. See Bac. Tr. 306; Cornish on Uses; Sanders on Uses; 1 Fonbl. Eq. 363; Co. Lit. 272 b.g The feoffee, therefore, or terre-tenant, (that is, the person to whom the legal estate was conveyed,) had the freehold or sole property in him: and the person who had conveyed the legal estate to him, (that is, the cestui que use,) had neither jus in re; nor ad rem; for if he had entered upon the land without the consent of the feoffee, he had been a trespasser; so that nothing remained in him but a bare confidence or trust; for which, if it was broken, he had no remedy but by subpoena in Chancery. But this equitable right extended itself to all persons who claimed in privity under the feoffee; that is, who came into the same estate which the feoffee had in the use, and by contract with him; for a disseisor came into the same estate, but not by contract or agreement; and therefore, claiming not by or from the feoffee, he consequently did not claim the estate as it was subject to the uses; but he claimed an estate above that free from and discharged of the uses, and it would in a manner have defeated his title, should he have been compelled to stand seised to a use, when he did not claim the estate which was charged with a use; for confidence in the person was requisite as well as privity of estate. Confidence in the person was either express or implied; as, if a feoffee to a use had, for good consideration, enfeoffed one who had no notice of the use, the use was destroyed; for the person enfeoffed not knowing that there were any uses, no trust could be reposed in him to let the cestui que use take the profits; but if he had notice, a trust might well be said to be reposed in him, since he took the land, knowingly charged with the uses. So, also, if the feoffment had been made without consideration, though the person enfeoffed had no notice of the use, yet he would nevertheless have stood seised to the use; for the law in that case would have implied notice of the use, and consequently the trust would have remained. Hence it may be collected, that to every use at common law there were two inseparable incidents,-a privity in estate, and a confidence in the person; and where either of these failed, the use was suspended or destroyed. But for the better understanding of the law relative to this head, we shall consider, (A) The Origin and first Introduction of Uses. (B) The several Properties of an Estate in Use at Common Law, which are, Uses and Trusts. 1. That it is alienable; wherein, of the Power of Cestui que Use. 1. At Common Law. 2. By the Statute of 1 R. 3, c. 1. 2. That it is descendible; wherein, 1. Of the Descent of a Use in Possession. 2. Of the Descent of a Use in Reversion. 3. That it is devisable. 4. That it is not extendible, or Assets. 5. That it is not forfeitable. 6. That a Woman is not dowable of a Use. (C) The Inconveniences of Uses. (D) The Alterations introduced with respect to Conveyances to Uses by the 27 H. 8, c. 10. (E) The several Sorts of Conveyances to Uses; wherein, 1. Of those which raise Uses by Way of Transmutation of Possession; such as,— 1. Feoffment; 2. Fines; 3. Recoveries, of which before, under their respective Titles. But herein farther, Of Deeds declaring the Uses of Feoffments, Fines, and Recoveries wherein, 1. Who may declare Uses. 2. To whom they may be declared. 3. In what Manner they may be declared. 4. At what Time they may be declared. 5. In what Cases Averments may be made of Uses. 2. Of those Conveyances which raise Uses without Transmutation of Possession; such as, 1. Covenants to stand seised to Uses; wherein, 1. Who may covenant to stand seised, and to whom. 2. What Consideration is necessary to a Covenant to stand seised, and how far it extends. 3. By what words a man may covenant to stand seised. 4. The Effect of a Covenant to stand seised. 3. Of Bargain and Sale, of which before under its proper Title. (F) What Kind of Property may be conveyed by Way of Use. (G) The several Kinds of Uses executed by the Statute; such as, 1. Uses in esse. 2. Uses in Possibility; wherein, 1. Of executory Fees; and the Difference where they rise by way of Use, and where by Devise. 2. Of contingent Remainders, of which before under Title "REMAINDER :" But herein farther, 1. In what Manner they are to be executed. 2. How they may be defeated. 1. Where there is no power of Revocation. 2. Where there is an express Power of Revocation. 3. How they may be suspended, revived, or extinguished. (H) The Cases out of the Statute; as, 1. Where Uses are limited upon Uses. 2. Where Terms are raised and limited in Trust; wherein, 1. Of Terms which wait on the Inheritance. 2. Of Terms in Gross. 3. Where Lands are limited to Trustees to pay over the Rents and Profits. (B) Properties of an Estate in Use at Common Law. (I) Resulting Uses, or Uses by Implication. (K) Second or shifting Uses. (L) The Manner of pleading Uses. (A) The Origin and first Introduction of Uses. THE original of uses was from a title under the civil law, which allows of an usufructuary possession, distinct from the substance of the thing itself; and it was brought over to us from thence by the clergy, who were masters of the civil law. For when they were prohibited from taking any thing in mortmain, after several evasions by purchasing lands of their own, tenants suffering recoveries, and purchasing lands round the church and making them churchyards by bull from the pope, at last this way was invented of conveying lands to others to their own use; and this being proper matter of equity, it met with a very favourable construction from the judge of the Chancery court, who was in those days commonly a clergyman; and the clergy thought this a statute contrary to natural justice, and so could easily tolerate any act for evading it. Thus this way of settlement began; and was often used for other fraudulent purposes, as to defeat just debts, wardships, escheats, &c.; but it more generally prevailed among all ranks and conditions of men, by reason of the civil commotions between the houses of Lancaster and York, to secrete the possessions, and to preserve them to their issue, notwithstanding attainders.(a) Gilb. Law of Uses, 3. (a) Sir William Jones, 127, Lord Willoughby's case. The analogy between the origin and progress of the fidei commissio of the Romans and of our uses is remarkable, and shows how "states and commonwealths have common accidents." Bacon says: "I find that in the civil law that which cometh nearest in name to the use is nothing like in matter, which is usus fructus; for usus fructus and dominium is with them as with their particular tenancy and inheritance. But that which resembleth the use most is fidei commissio; and therefore you shall find in Justi nian, lib. 2, that they had a form in testaments to give inheritance to one to the use of another, Hæredem constituo Caium, rogo autem te, Caie, ut hæreditatem restituas Seio; and the text of the civilians saith, that for a great time if the heir did not as he was required, cestui que use had no remedy at all, until about the time of Augustus Cæsar, there grew in custom a flattering form of trust, for they penned it thus: Rogo te per salutem Augusti, or per fortunam Augusti, &c.; whereupon Augustus took the breach of trust to sound in derogation of himself, and made a rescript to the prætor to give remedy in such cases. Whereupon within the space of one hundred years, these trusts did spring and speed so fast, as they were forced to have a particular chancellor only for uses, who was called prætor fidei commissarius; and not long after, the inconvenience of them being found, they resorted unto a remedy much like unto this statute; for by two decrees of senate, called Senatus Consultum Trebellianum et Pegasianum, they made cestui que use to be heir in substance." Bacon on Stat. of Uses. Cruise, Dig. 388; 1 Madd. Ch. Pr. 446; Inst. 2, 32, 2; Code, 6, 42; Bouv. L. D. Fidei commissum. In Louisiana, fidei commissa were abolished by the code. 5 N. S. 302.g (B) The several Properties of an Estate in Use at Common Law. UNDER this head it will be sufficient to observe in general, 1. That at common law a use is alienable; 2. that it is descendible; 3. that it is devisable; 4. that it is not extendible, or assets; 5. that it is not forfeitable; 6. that a woman is not dowable of a use. 1. That it is alienable; wherein, of the Power of Cestui que Use. K 2 |