seldom undertakes the task of interpreting them, a task indeed which would itself be less onerous, were more care and pains bestowed on the making of them. But as it is, a doubt is left to stand for years, till the cause of some unlucky suitor raises the point before one of the Courts; till this happens, the judges themselves have no authority to remove it; and thus it remains a pest to society, till caught in the act of raising a lawsuit. No wonder then, when judges can do so little, that writers should avoid all doubtful points. Cases, which have been decided, are continually cited to illustrate the principles, on which the decisions have proceeded; but in the absence of decision, a lawyer becomes timid, and seldom ventures to draw an inference, lest he should be charged with introducing a doubt. To return; a feoffment, with livery of seisin, though once the usual method of conveyance, has long since ceased to be generally employed. For many years past, another method of conveyance has been resorted to, which could be made use of at any distance from the property; but as this mode derived its effect from the Statute of Uses (m), it will be necessary to explain that statute before proceeding further. (m) 27 Hen. VIII. c. 10. CHAPTER VIII. OF USES AND TRUSTS. gift with livery of seisin, was all that was ne cessary for a conveyance. PREVIOUSLY to the reign of Henry VIII., when the Anciently a Statute of Uses (a) was passed, a simple gift of lands to a person and his heirs, accompanied by livery of seisin, was all that was necessary to convey to that person an estate in fee simple in the lands. The courts of law did not deem any consideration necessary; but if a man voluntarily gave lands to another, and put him in possession of them, they held the gift to be complete and irrevocable; just as a gift of money or goods, made without any consideration, is, and has ever been, quite beyond the power of the giver to retract it, if accompanied by delivery of possession (b). In law, therefore, the person to whom a gift of lands was made, and seisin delivered, was considered thenceforth to be the feoffee to enjoy the vailed. true owner of the lands. In equity, however, this was In equity a difnot always the case; for the Court of Chancery, admi- ferent rule prenistering equity, held, that the mere delivery of the possession or seisin by one person to another, was not at all conclusive of the right of the lands, of which he was enfeoffed. to take from him the title which he possessed, and could always assert, in the courts of law; but equity could and did compel him to make use of that legal title, for the benefit of any other person, who might have a more righteous claim to the beneficial enjoyment. Thus, if a feoffment was made of lands to one person, for the benefit, or to the use of another, such person was bound in conscience to hold the lands, to (a) 27 Hen. VIII. c. 10. (b) 2 Black, Com. 441. Feoffment to the use of the feoffor. the use or for the benefit of the other accordingly; so that, while the title of the person enfeoffed was good in a court of law, yet he derived no benefit from the gift, for the Court of Chancery obliged him to hold entirely for the use of the other, for whose benefit the gift was made. This device was introduced into England about the close of the reign of Edward III. by the foreign ecclesiastics, who contrived, by means of it, to evade the statutes of mortmain, by which lands were prohibited from being given for religious purposes; for they obtained grants to persons to the use of the religious houses; which grants the clerical chancellors of those days held to be binding (c). In process of time, such feoffments to one person to the use of another became very common; for, the Court of Chancery allowed the use of lands to be disposed of in a variety of ways, amongst others by will (d), in which a disposition could not then be made of the lands themselves. Sometimes persons made feoffments of lands to others, to the use of themselves the feoffors; and, when a person made a feoffment to a stranger, without any consideration being given, and without any declaration being made, for whose use the feoffment should be, it was considered in Chancery that it must have been meant by the feoffor to be for his own use (e). So that, though the feoffee became in law absolutely seised of the lands, yet in equity he was held to be seised of them to the use of the feoffor. The Court of Chancery paid no regard to that implied consideration, which the law affixed to every deed on account of its solemnity, but looked only to what actually passed between the parties; so that a feoffment accompanied by a deed, if no consideration (c) 2 Black. Com. 328; 1 Sand. Uses, 16, (15, 5th ed.); 2 Fonblanque on Equity, 3. (d) Perkins, ss. 496, 528, 537; Wright's Tenures, 174; 1 Sand. Uses, 65, 68, 69, (64, 67, 68, 5th ed.); 2 Black. Com.329; ante, p. 52. (e) Perkins, s. 533; 1 Sand. Uses, 61, (60, 5th ed.) actually passed, was held to be made to the use of the feoffor, just as a feoffment by mere parol or word of mouth. If however there was any, even the smallest, consideration given by the feoffee (ƒ), such as five shillings, the presumption that the feoffment was for the use of the feoffor was rebutted, and the feoffee was held entitled to his own use. Uses. Transactions of this kind became in time so frequent that most of the lands in the kingdom were conveyed to uses, "to the utter subversion of the ancient common laws of this realm (g)." The attention of the legislature was from time to time directed to the public inconvenience to which these uses gave rise; and, after several attempts to amend them (h), an act of parliament was at last passed for their abolition. This act is The Statute of no other than the Statute of Uses (i), a statute which still remains in force, and exerts to the present day a most important influence over the conveyance of real property. By this statute, where any person or persons shall stand seised of any lands, or other hereditaments, to the use, confidence, or trust of any other person or persons, the persons that have any such use, confidence, or trust (that is, the persons beneficially entitled), shall be deemed in lawful seisin and possession of the same lands and hereditaments, for such estates as they have in the use, trust, or confidence. This statute was the means of effecting a complete revolution in the system of conveyancing. It is a curious instance of the power of an act of parliament; it is in fact an enactment that what is given to A. shall, under certain circumstances, not be given to A. at all, but to somebody else. For, suppose a feoffment to be 1 Sand.Uses,62, (61,5th ed.) (g) Stat. 27 Hen. VIII. c. 10, preamble. (h) See particularly stat. 1 Rich. III. c. 1, enabling the cestui que use, or person beneficially enti- (i) 27 Hen. VIII. c. 10. and his heirs, to the use of B. and his heirs. out considera tion. Feoffment to A. now made to A. and his heirs, and the seisin duly delivered to him; if the feoffment be expressed to be made to him and his heirs, to the use of some other person, as B. and his heirs, A. (who would, before this statute, have had an estate in fee simple at law) now takes no permanent estate, but is made by the statute to be merely a kind of conduit pipe for conveying the estate to B. For B. (who before would have had only a use or trust in equity) shall now, having the use, be deemed in lawful seisin and possession; in other words, B. now takes, not only the beneficial interest, but also the estate in fee simple at law, which is wrested from A. Feoffiment with by force of the statute. Again, suppose a feoffment to be now made simply to A. and his heirs without any consideration. We have seen that, before the statute, the feoffor would in this case have been held in equity to have the use, for want of any consideration to pass it to the feoffee; now therefore the feoffor, having the use, shall be deemed in lawful seisin and possession; and consequently, by such a feoffment, although livery of seisin be duly made to A., yet no permanent estate will pass to him; for, the moment he obtains the estate, he holds it to the use of the feoffor; and the same instant comes the statute, and gives to the feoffor, who has the use, the seisin and possession (k). The feoffor, therefore, instantly gets back all that he gave; and the use is said to result to himself. If however the feoffment be made unto and to the use of A. and his heirsas, before the statute, A. would have been entitled for his own use, so now he shall be deemed in lawful seisin and possession, and an estate in fee simple will effectually pass to him accordingly. The propriety of inserting, in every feoffment, the words to the use of, as well as to the feoffee, is therefore manifest. It appears also that an estate in fee simple may be effectually con Resulting use. (k) 1 Sand. Uses, 99, 100, (97, 5th ed.) |