(E) Of the several Sorts of Conveyances to Uses. Likewise, if a man makes a feoffment in fee to the use of A for life, the remainder to his first son in tail, the remainder to B in fee; if A dies, his wife being privement enseint, and a son is afterwards born, he shall take nothing; for if the remainder does not vest at the determination of the particular estate, it shall never vest; for as it is said before, the statute does not change the nature and being of estates that were settled at common law, and a remainder ex vi termini supposes a particular estate, of which it doth remain. Gilb. Law of Uses, 77. But see 10 & 11 W. 3, c. 10, for preserving contingent remainders to after-born children, which statute was occasioned by the decision in Reeve v. Long, 1 Salk. 227.|| So, if a man makes a feoffment in fee to the use of A his son for life, and afterwards to the use of every person that shall be his heir, for life only, it is not good to the heir; for it is against the rules of common law, that a perpetual freehold for life only should descend, because it creates a perpetuity. But it seems in this case, as if the Chancery (since there is supposed a good consideration) would have executed a fee in A, according to the intent of the parties. 1 Rep. 138 a, Chudleigh's case; Gilb. Law of Uses, 77. If such a limitation were good, the inheritance would be in nobody. In some cases, however, the statute operates against the rules of law. As, If a man makes a feoffment in fee, to the use of A in fee; but upon payment of 100%. or any other contingency, to the use of B in fee, if the contingency happens, the fee shall be executed in B; for though, according to the rules of common law, a fee cannot be limited on a fee, because a fee-simple is the largest estate that can be limited, and therefore will not bear a remainder over, by way of limitation; and though this cannot be construed a conditional estate, because to avoid maintenance, the common law allows no stranger to take advantage of a condition; yet the necessities of commerce and family settlements induced the Chancery to pass by this rule, and the statute has executed the possession in the same manner and form as the party had the use. Now since he had but a conditional fee in the use before the statute, he cannot have an absolute and unconditional estate, since the statute; for that is to set up an estate directly contrary to the express words of the statute. Gilb. Law of Uses, 78. See Sir E. Sugden's summary of the operations of the statute in altering the common law. 1st, In the transfer of the legal estate by a mere secret deed; 2dly, in the creation of estates not allowed by the common law. Gilb. by Sugden, p. 148. It has been observed, that the statute of the 27 H. 8, introduced several sorts of conveyances quite opposite to the rules of common law; and this leads us to consider the several sorts of conveyances to uses, with their respective operations. (E) of the several Sorts of Conveyances to Uses. THERE are but three sorts of conveyances to uses; the two first of which only will feed a contingent use, viz.: 1. Feoffment, fine, or common recovery to uses. 2. Covenant to stand seised to uses. 3. Bargain and sale to uses. By this last conveyance only no contingent use can be supported. 2 Sid. 158, Heyns v. Villars. VOL. X.-17 (E) Of the several Sorts of Conveyances to Uses. It is to be observed, concerning the operation of these conveyances, that by those under the first division, such as feoffment, fine, or common recovery, uses are raised by transmutation of possession; but by the second and third, that is, by covenant to stand seised, and by bargain and sale, uses arise without transmutation of possession, for the possession is still retained by the covenantor or bargainor, but for the use of another. Therefore, Plow. 301, Sharrington v. Stotton. The covenantee or bargainee cannot have the land, because they had not livery of seisin, therefore reason vests the use in them, which is but a right in conscience to have the profits. Plow. loc. cit. 1. Of those which raise Uses by way of Transmutation of Possession, such as, 1. Feoffment. 2. Fines. 3. Recoveries. The general nature and effect of these several assurances have been already explained under their respective titles. It may not be improper here, however, to take notice of this general rule, viz., That On these conveyances which raise uses by way of transmutation of possession, no consideration is necessary. Per Holt, C. J., 12 Mod. 161, 162, and 1 Rep. 176, Mildmay's case. A use declared on an estate executed, needs no consideration. Moor, 102, pl. 247, Calthorpe's case. It may be added, that when a use arises upon a consideration, the consideration must be presently executed. Arg. Cart. 140, in case of Garnish v. Wentworth. On the other hand it has been argued that if J covenant to stand seised to the use of JS and his heirs, in consideration that he shall be my counsellor, it is good, and the land passed presently, though it is not executed. Arg. Cart. 142, says this case was put by Popham in B. R. in one Pepplewell's case. See note (8), Harg. Co. Litt. 123 a.|| It remains in the next place to consider, Deeds declaring the Uses of Feoffments, Fines, and Recoveries. And herein it is to be premised, that uses may be declared or averred on a feoffment, fine, or recovery of land; but on a bargain and sale of land no use may be declared or averred, but what the law doth make. 1 Rep. 176, Mildmay's case. see Gilb. by Sugden, p. 149.|| Because a use cannot be declared upon a use; and Likewise on a covenant to stand seised to uses, no use may be declared or averred but what is contained within the deed. 1 Rep. 176, Mildmay's case; Dyer, 169, pl. 21. It remains therefore to consider, 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. 1. Who may declare Uses. As the Court of Chancery does not set up rules of property contrary to the rules of law, they who have not a disposing power by the law cannot raise a use; and consequently baron and a feme covert cannot declare uses upon a feoffment so as to bind the wife. Gilb. Law of Uses, 39. But baron and feme may levy a fine which will bind the wife; for here the law allows her a disposing power, because she is privately examined; consequently, the Chancery must allow them to declare what is the design (E) Of the several Sorts of Conveyances to Uses. of that fine; and therefore such declaration by them both shall bind the wife. Moor, 197; 2 Rep. 57 a, Beckwith's case; 2 Roll. Abr. 798. Likewise, if the husband only declare the uses, this shall bind the wife; for since she joins in the fine, she must be presumed to concur in the design of that fine, unless the contrary appears by some manifest sign of dissent. 2 Rep. 57 a; Roll. Abr. 798. But, if the husband declares the uses of the fine one way by deed, and the wife another way by deed, this binds the husband during the coverture, but not the wife afterwards; for the husband cannot declare the uses without concurrence of the wife, because he has no estate; and she cannot be presumed to concur where the contrary appears by her deed: and she cannot declare the uses alone, because during marriage she is not sui juris, and without the husband she has no disposing power: and if there be no use declared upon this fine, it is to the use of the wife: for where there is no other intent of a fine declared, it is supposed to be designed as a farther security to the present possessor; and the use is still in the wife, since in this case she has not departed with it. 2 Rep. 57; Moor, 197, Beckwith's case. Quære, whether the declaration be not merely void. Gilb. Law of Uses, 40. A fine shall bind the wife, though she be within age; but it is said that such a fine is reversable for the nonage of the wife during her nonage. Cro. Eliz. 129; Charnoicke et Ux. v. Worsley, 2 Rep. 77 b; Lord Cromwell's case, Gilb. Law of Uses, 41. A man of non sane memory may declare the use of a fine levied. 2 Rep. 58 a, Beckwith's case. So, an infant may limit a use upon feoffment, fine, or recovery, and he cannot countermand or avoid the use, without first avoiding the conveyance. Lord Bacon on the Statute of Uses, 355. It is observable in general, that every man may declare and dispose of the use according to the estate and interest he has in the land: and therefore if two joint-tenants levy a fine, and declare the uses severally, each man disposes of his own moiety; but, if they declare no uses, they are seised as before. 2 Rep. 58 a, Beckwith's case. So, if tenant for life and he in remainder in fee join in a fine, without declaring any uses, they are seised as they were before. 2 Rep. 58 a, Beckwith's case. [If the remainder-man seals, and is party to a deed, wherein the tenant for life alone covenants to suffer a recovery, &c., to certain uses, this does not bind the remainder-man, though he in the remainder after join in suffering the recovery, &c. 3 P. Wms. 210, note B. If tenant for life, remainder-man in tail, and reversioner in fee levy a fine, a declaration of uses by the tenant for life and remainder-man does not bind the reversioner, without his privity. Roe v. Popham, Dougl. 25.] If A seised of certain lands, and B a stranger join in a fine, without consideration, it shall be to the use of A, for since there is no consideration to part with the land, the use is still in him. 2 Rep. 58 a. In like manner if A, seised in fee of certain lands, and B, a stranger, join (E) of the several Sorts of Conveyances to Uses. in a common recovery, without declaring any uses, the use shall arise to him that had the interest in the land, and not to the stranger. 2 Roll. Abr. 789. So, where the father was tenant for life, remainder to the son in tail; a præcipe was brought against the father, who vouched the son, and a common recovery was had; and the indenture recited, that the recovery was made between the father and others: but, inasmuch as no proof was of the consent of the son to such declaration, nor was he party to the indenture, the court directed the jury to find the uses according to the estate which the parties had at the time of the recovery.(a) Lat. 82, Argol v. Cheney; Palm. 405, S. C.; Noy, 7, S. C. (a) See farther letter (I) of Resulting Uses. [The king may declare uses upon his letters patent, though indeed the patent of itself implies a use. But, if the king gives lands to J S and his heirs by letters patent, to the use of JS for life: here, J S has only an estate for life, and the king has the inheritance without any office found; for implication out of matter of record ever amounts to matter of record. Bac. Uses, 66; Sand. Uses, 208. The queen may also declare uses. Bac. Uses, 66; Sand. Uses, 208. 2. To whom they may be declared. A use, it is said, cannot be raised to aliens. For an alien could not compel the feoffees to execute a use; for it is contrary to the policy of the law that an alien should plead, or be impleaded, touching lands, in any court of the kingdom. Gilb. Law of Uses, 43. By Rolle, C. J.-The Chancellor cannot compel one to execute a trust for an alien. Sty. 21, The King v. Holland; All. 15 & 16. But, according to Broke, a feoffment or gift to the use of an alien born is good, for a use is only a matter in conscience. Bro. Feoffment to Uses, pl. 29. The king shall have the use of an alien; for the advantage which a man receives from his duty can extend no farther than the obligation of that duty reaches; but the allegiance of an alien is temporary, therefore so is his property; and since he is incapable of perpetual subjection, he cannot be protected in any estate that is of perpetual continuance; and the inconvenience is the same if this be a freehold at law, or a trust. All. 15 & 16; Sty. 40; Gilb. Law of Uses, 43. But in this case it is said, the king shall not seize the land of an alien, unless it be executed in him by a decree in Chancery; for there was no right in cestui que use himself to seize the lands without a decree, and the king has only the rights of the cestui que use. Sty. 40; Gilb. Law of Uses, 44. 11. A trust for an alien will be executed for the benefit of the king. All. 14; Sty. 40; 3 Cha. R. 19.|| Also, though the king cannot have feoffees to his use, because he cannot take but by matter of record, yet he may take it when the use is found of record, where an office is found of the whole matter. Gilb. Law of Uses, 44. Likewise, the limitation of a use to the poor of the parish of Dale is good, though no corporation: for though they are capable of no property at common law in the thing trusted, because the rules of pleading require persons claiming to bring themselves under the gift: and no indefinite multitude, without public allowance, can take by a general name; yet they are capable of a trust; for here the complainants do not derive to themselves (E) Of the several Sorts of Conveyances to Uses. any right or title to the estate, but show that it has been abused and misemployed by the owners, contrary to conscience.(a) Bro. F. to Uses, pl. 29; 1 Rep. 23-25; Gilb. Law of Uses, 44. (a) There must in every case be a use capable of taking effect. Therefore, as was gravely observed in the reign of Edward the Fourth, a use in favour of Salisbury Plain, or of the Moon, is void. Bro. Abr. 339 b, pl. 37.|| 3. In what Manner they may be declared. Before the statute of frauds, 29 Car. 2, c. 3, even a parol declaration of the uses of a fine was good. And 4 Mod. 269, Jones v. Morley. Uses, even since that statute, may be declared by writing only without any seal. 7 Mod. 76, Shortridge v. Lamplugh. A written declaration, if not by deed, will not control a prior declaration by deed; but where the first declaration is by writing merely, it may be controlled by a subsequent writing. Gilb. by Sugden, 101.|| A grant to A, for the use of B, is a use executed in B. Willson v. Killcannon, 4 Hayw. 196.g If a use is declared by indenture, yet the parties may alter the use by other indenture at any time till the estate is executed, and the last indenture shall guide the use. Moor, 107, pl. 249. Agreed by the justices in Andrew's case. [But such other indenture must be by the consent of all the parties interested,(b) else it cannot control the first indenture. Thus, A was tenant for ninety-nine years, if he so long lived, remainder to trustees to support contingent remainders, remainder to the first and other sons of A in tail, remainder to A in fee. A having two sons, B and C, they all joined in a lease and release of the estate to certain uses, and there was a conveyance to suffer a recovery within twelve months to those uses: afterwards they, with the heir of the surviving trustee, joined in a lease and release to make a tenant to the præcipe, in order to suffer a recovery to the uses of the first indenture; but before any recovery was suffered, B the eldest son died, and after the death of B, and before the recovery was suffered pursuant to the above deeds, A and C by another deed covenanted to suffer a recovery to certain other uses; and before the expiration of the twelve months specified in the first deed, a recovery was suffered. The question was, Whether the first deed, declaring the uses of the recovery, and made by A, B, and C, should stand, in preference to that made by A and C alone? Lord Hardwicke clearly held, that the first deed by A, B, and C was a good deed to lead the uses of the recovery: that when A, B, and C, and the heir of the surviving trustee, made a tenant to the præcipe, they passed a defeasible estate to serve the uses of the first deed; and that the recovery suffered within the twelve months rendered that defeasible estate indefeasible, though one of the parties was dead before the recovery suffered: that the last deed was not sufficient to alter the uses declared by the first deed, because not made by the agreement of all the parties. Stapilton v. Stapilton, 1 Atk. 2. See Durnford v. Lane, 1 Bro. Ch. R. 106;] {8 Term, 211, Doe v. Wichelo.} (b) Who shall come within this description is in many cases a question of difficulty.[] Where there is a deed, and a last writing by husband and wife, the last writing, though not a deed, amounts to a sufficient declaration of uses upon the fine, the fine being levied at a time different from the deed. This writing was only between the husband of the M Comb. 429, Jones v. Morley. |