to receive and pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust. (d) (40)

Of the two more ancient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore the court determined, that though these were not uses which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. (e) To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts; and thus, by this strict construction of the courts of law, 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. (f) (41)

*However, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mischiefs which made [*337] uses intolerable. The statute of frauds, 29 Car. II, c. 3, having required that every declaration, assignment, or grant of any trust in lands or hereditaments (except such as arise from implication or construction of law), shall be made in writing signed by the party, or by his written will: the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice; (g) which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes and recognizances (by the express provision of the statute of frauds), to forfeiture, to leases, 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 some hasty precedents, (h) than from any well-grounded principle. (42) It hath

(d) 1 Eq. Cas. Abr. 383, 384. (g) 2 Freem. 43.

(e) 1 Hal. P. C. 248.

(h) 1 Chanc, Rep. 254. 2 P. Wms. 640.

(f) Vaugh. 50. Atk. 591.

common, and not as joint-tenants, to the use of them, their heirs, and assigns; held that A and C took as tenants in common. Cro. Car. 230; Jenkins v. Young, id. 244. And see Cruise's

Dig. title, Use, S. 31, et seq.

But where the purposes of a trust may be answered, by giving the trustees a less estate than a fee, no greater estate shall arise to them by implication, but the uses in remainder limited on such lesser estate, so given to them, shall be executed by the statute. Doe d. White v. Simpson, 5 East, 162; 1 Smith, 383. And a devise in fee to trustees, without any specific limitation to cestuy que trust, the latter takes a beneficial interest in fee. 8 T. R. 597. And an express devise in fee to trustees may be cut down to an estate for life, upon an implication of intent. 7 T. R. 433. So where the trustees are to receive and pay rents to a married woman, upon her death the legal estate is executed in the person who was to take in remainder 7 id. 654.

(40) [It is the practice to introduce only the names of the trustee and the cestuy que trust; the estate being conveyed to A and his heirs, to the use of A and his heirs, in trust for B and his heirs; and thus this important statute has been effectually repealed by the repetition of half a dozen words. ]

(41) In several of the United States the statute of uses has been adopted as a part of the common law, while in others its main features have been re-enacted, but with such modifications as effectually abolish merely passive trusts, in whatever words they may have been created. See 2 Washb. Real Prop. 142, et seq.

(42) [It has been decided, that when the legal and equitable estates meet in the same person, the trust or equitable estate is merged in the legal estate; as if a wife should have the legal estate and the husband the equitable; and if they have an only child, to whom these estates

also been held not liable to escheat to the lord, in consequence of attainder or want of heirs: (i) because the trust could never be intended for his benefit. But let us now return to the statute of uses.

The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. But this now has given way to

*12. A twelfth species of conveyance, called a covenant to stand.

[*338] seised to uses: (43) by which a man, seised of lands, covenants in con

sideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, (k) without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate when made upon such weighty and interesting considerations as those of blood or marriage.

13. A thirteenth species of conveyance, introduced by this staute, is that of a bargain and sale of lands; which is a kind of real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain a trustee for, or seised to the use of, the bargainee: and then the statute of uses completes the purchase; (7) or, as it hath been well expressed, (m) the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament, by statute 27 Hen. VIII, c. 16, that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster hall, or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious, till about six years before; (n) which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible it is to *fore[*339] see, and provide against, all the consequences of innovations! This omission has given rise to

(i) Hard. 494. Burges and Wheat, Hill. 32 Geo. II. in Canc.
(k) Bacon, Use of the Law, 151.
(l) Ibid, 150.

(m) Cro. Jac. 696.

(n) See page 142.

descend, and who dies intestate without issue, the two estates having united, the descent will follow the legal estate, and the estate will go to an heir on the part of the mother: and thus, which appears strange, the beneficial interest will pass out of one family into another, between whom there is no connexion by blood. Goodright v. Wells, Doug. 771.

Before the statute of uses there was neither dower nor tenancy by the curtesy of an use, but since the statute, the husband has curtesy of a trust estate, though it seeins strange that the wife should, out of a similar estate, be deprived of dower.]

Dower is now given the widow in these cases by statute and 4 William IV, c. 105.

(43) [This and the next species of conveyance, viz.: bargain and sale, are to be distinguished by the nature of the instrument, and not by the words merely; for the words "covenant to stand seised to uses" are not essential in the one, nor "bargain and sell" in the other. For if a man, for natural love and affection, bargain and sell his lands to the use of his wife or child, it is a covenant to stand seised to uses, and without eurollment vests the estate in the wife or child: so if for a pecuniary consideration he covenants to stand seised to the use of a stranger. if this deed be enrolled within six months, it is a good and valid bargain and sale under the statute, and the estate vests in the purchaser. 7 Co. 40, by; 2 Inst. 672; 1 Leon. 25; 1 Mod. 175; 2 Lev. 10; 2 M. and W. 503; 2 Nev. and M. 602; 10 Mee. and W. 603; 1 Keen, 795. A bargain and sale without enrollment may be construed and act as a grant or surrender, which shows that the words "bargain and sell" have no precise legal import. 1 Prest. Conv. 38.]

14. A fourteenth species of conveyance, viz: by lease and release; first invented by Serjeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I), have formerly doubted its validity. (0) It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore, being thus in possession, (44) is capable of receiving a release of the freehold and reversion; which, we have seen before, (p) must be made to a tenant in possession: and, accordingly, the next day, a release is granted to him. (4) This is held to supply the place of livery of seisin and so a conveyance by lease and release is said to amount to a feoffment. (r) (45)

15. To these may be added deeds to lead or declare the uses 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 uses, hinted at in a former page, (s) and founded in a previous power, reserved at the raising of the uses, (t) to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation. (u) And this may suffice for a specimen of conveyances founded upon the statute of uses, and will finish our observations upon such deeds as serve to transfer real property.

*Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or incumber, [*340 ] lands and to discharge them again: of which nature are, obligations or bonds, recognizances, and defeazances upon them both.

1. An obligation or bond, is a deed (v) whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligato: but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor, while living; and after his death the obligation descends upon his

(0) 2 Mod. 252.
(r) Co. Litt. 270.
(u) Co. Litt. 237.

(p) Page 324.
(7) See Appendix, No. II, §§ 1, 2.
Cro. Jac. 604. (8) Page 335. (t) See Appendix, No. II, page xi.
(v) See Appendix, No. III, page xiii.

(44) [It must be borne in mind that in this and former instances, where it is said the statute annexes the possession, upon the vesting of the use, an actual occupancy of possession of the -land is not meant.

The effect of the statute is to complete the title of the bargainee, or to give him a vested interest by which his ownership in the estate is as fully confirmed, as it would have been, according to the common law, by livery and seisin. Mr. Preston in his Conveyancing, vol. 2, page 211, has discussed and explained this subject with his usual ability. See also Cruise Dig. index, Lease and Release; see also the opinion of Mr. Booth in Cases and Opinions, 2d vol. 143 to 149, tit. Reversions, edit. 1791. As to the effect of a conveyance by lease and release of a reversion expectant on a term, and the mode of pleading such a conveyance, see Co. Litt. 270, a. n. 3; 4 Cruise, 199, and 2 Chitty on Pleading, 4th edit. 578, note e.]

(45) [Prior to the statute uses of this form of conveyance was in existence; the person wishing to transfer a freehold to another granted him an actual lease for two or three years, the lessee actually entered, and then was capable of accepting a release of the freehold. As, however, an actual entry was necessary, this mode of conveyance was nearly as inconvenient as a feoffment, and, when completed, was not in all respects so powerful; it was therefore seldom resorted to. The statute of uses has dispensed with actual entry, but, though the releasee is thus made capable of taking the release by the statute, yet the estate which he takes is one at common law, exactly as if he had actually entered under his lease. And if the release be not to his own use, but to the use of another, that is not a use upon a use which the statute will not execute, but the cestuy que use will take the legal estate. See 2 Saund. 61, 63.]

heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral charge upon the lands. (46) How it affects the personal property of the obligor will be more properly considered hereafter.

If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional; for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards *becomes impossi

[*341] ble by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency. (w) On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought, viz.: his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed, the damages sustained, upon non-performance of covenants; and the like. And the like practice having gained some footing in the courts of law, (x) the statute 4 and 5 Ann., c. 16, at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge. (47)

2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized, (y) with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is," that A. B. doth acknowledge to owe to our lord the king, to the plaintiff, to C D or the like, the sum of ten pounds," which condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C D, &c., is called the cognizee, "is cui cognoscitur," as he that enters into the recognizance is called the cognizor, "is qui cognoscit." This, being either certified to or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal: so that it is not in strict propriety a deed, though the effects of it are greater than a *common obli[ *342 ] gation, being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record. (z) (48) There are

(w) Co. Litt. 206.

(x) 2 Keb. 553, 555. Salk. 596, 597. € Mod. 11, 60, 101. (y) Bro. Abr. tit. recognizance, 24.

(z) Stat. 29 Car. II, c. 3. See page 161.

(46) [If in a bond the obligor binds himself, without adding his heirs, executors, and administrators, the executors and administrators are bound, but not the heir: Shep. Touch. 369; for the law will not imply the obligation upon the heir. Co. Litt. 209, a. A bond does not seem properly to be called an incumbrance upon land; for it does not follow the land like a recognizance and judgment: and even if the heir at law aliens the land, the obligee in the bond, by which the heir is bound, can have his remedy only against the person of the heir to the amount of the value of the land; and he cannot follow it when it is in the possession of a bona fide purchaser. Bull. N. P. 175. By statutes 11 Geo. IV, and 1 William IV, c. 47, the creditors are enabled to maintain actions of debt or covenant against heirs and devisees upon the covenants and specialty debts of their ancestors or devisors, to the extent of the value of the lands which have come to them by descent or devise.]

(47) [As to the difference between a penalty and a stipulation for liquidated damages, see 3 Moo, and P. 425; 7 Scott, 364; 3 Mee. and W. 545.] See also Kemble v. Farren, 6 Bing. 141; Pierce v. Fuller, 8 Mass. 223; Davies v. Penton, 6 B. and Cr. 222; Niver v. Rossman, 18 Barb. 53; Sainter v. Fergason, 7 M., G. and S. 716, Jaquith v. Hudson, 5 Mich. 123; Wallis v. Carpenter, 13 Allen, 19; Powell v. Burroughs, 53 Penn. St. 329; Colwell v. Lawrence, 38 N. Y. 71. (48) [A recognizance not enrolled will be considered as an obligation, or bond, only; but being sealed and acknowledged, must be paid as a debt by specialty. Bothomly v. Lord Fair

also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII, c. 6, which have already been explained, (a) and shown to be a charge upon real property.

3. A defeazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. (b) This, like the condition of a bond, when performed, discharges and disincumbers the estate of the obligor.

These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any: though in these there is. certainly one palpable defect, the want of sufficient notoriety; so that purchasers or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the ancient feudal method of conveyance (by giving corporal seisin of the lands), this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or ledger-book of some adjacent monastery; (c) and the failure of the general register established by King Richard the First, for the starrs or mortgages made to *Jews in the capitula de Judæis, of which Hoveden has preserved a copy. How far [*343] the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record. (d) And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature (e) to erect such register in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties than prevented by the use of registers. (49)

(d) Dalrymple on Feudal Property, 262, &c.

(c) Hickes Dissertat. epistolar. 9.

(e) Stat. 2 and 3 Anu. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II, c. 6.

fax, 1 P. Wms. 340; S. C. 2 Vern. 751. If enrollment is allowed by special order, after the proper time has elapsed, this, for most purposes, makes the recognizance effectual from the time of its date; but, should the cognizor, between the date and the enrollment of the recognizance, have borrowed money on a judgment, the judgment creditor will be allowed a preference. Fothergill v. Kendrick, 2 Vern. 234.]

(49) [By the register-acts, a registered deed shall be preferred to a prior unregistered deed; yet it has been decreed by Lord Hardwicke, if the subsequent purchaser by the registered deed had previous notice of the unregistered one, he shall not avail himself of his deed, but the first purchaser shall be preferred. 1 Ves. Sen. 64. The legislature has been understood by our courts, not to have meant that (the form of registration being unobserved) actual notice of an incumbrance on an estate should not bind a purchaser. Davis v. Earl of Strathmore, 16 Ves. 430; Le Neve v. Le Neve, 3 Atk. 650; Bushell v. Bushell, 1 Sch. and Lef. 200; Doe v. Allsop, 5 Barn. and Ald. 147. The French courts adhered much more rigidly to the letter of their old code respecting registration, and held, that a creditor or purchaser might plead want of registration, in bar of a prior incumbrance, though such creditor or purchaser had full notice of the prior incumbrance, before he made his own contract or purchase. They thought that to admit a contrary doctrine would leave it always open to argument whether sufficient notice had or had not been received; and that this would lead to endless uncertainty, confusion, and perjury; therefore, that it was much better the right of the subject should depend upon certain and fixed principles of law, than upon rules and construcSons of equity. They decided, consequently, that nothing, not even the most actual and deet notice, should countervail the want of registration. See Mr. Hargrave's note to Co.