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Modern Lease and Release.

477

were held not to be included in the Statute of Enrolments, consequently bargains and sales, creating terms for years, did not require to be enrolled. A secret bargain and sale, upon some pecuniary consideration, (the semblance of value and the allegation of payment being still requisite,) to one for years, gave him the use under the general rule of equity, and the legal estate under the Statute of Uses. After some hesitation, it was considered that the legal estate so vested in the person in whose favor the bargain and sale was made, rendered him capable of accepting a release of the freehold or reversion, without the necessity of a previous actual entry. This furnished the means of introducing a secret mode of conveyance by bargain and sale and release, or as it is called by lease and release, which became the universal assurance of the realm. This mode of conveyance was held to be equivalent to a feoffment (a), but there was this difference, that its operation having originally been derived from the application of the equitable doctrine of uses, a lease and release, however extensive in its terms, passed no more than the conveying party could lawfully grant, and therefore was incapable of effecting a disseisin, or causing a forfeiture.

A lease and release therefore, operating by the effect of the Statute of Uses, became another mode of legal conveyance, in addition to those before described. "If," says Mr. Hayes (writing before the late stat. 8 & 9 Vict. c. 106), "we consider the release of a remainder or reversion as differing from a grant, only in the circumstance that the person to whom it is made has already a place in the tenancy, the terms Feoffment and Grant will comprise all the freehold assurances now remaining at the common law (b), and these, together with bargains and sales, and covenants to stand seised, operating under the Statute of Uses, comprise all the modes of conveyance by which a legal estate of freehold can now be created inter vivos" (c). Now by the statute 8 & 9 Vict. c. 106, above referred to (d), all corporeal tenements and hereditaments may, as regards the immediate freehold, be conveyed by Grant simply (e).

The next subject for consideration will be the nature and character of Uses after the Statute of Uses had been passed.

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Modern Modes of Conveyance.

*CHAPTER VI.

USES AFTER THE STATUTE OF USES, 27 HENRY VIII.—THEIR NATURE AND QUALITIES.

Object of the Statute of Uses-Old Modes of Conveyance to Uses continued, with and without Transmutation of Possession-Requisites of an Executed Use-Consideration.

The Seisin was a Seisin in fact-Use created by any Words indicating Intent-Many Incidents of Use in its Fiduciary State extinguished-Consequences as regards the Feoffeeand the Cestui que Use.

Any Person having a Legal Estate of Freehold, may be seised to an Use-The Seisin must be at Common Law-Estate in Fee Simple, Fee Tail, for Life, or for Years-Incorporeal Hereditaments within the Statute.

Nature and kinds of Uses that might be limited-Future Uses-Uses that conform to the Law, and è contra-Springing Uses-Shifting Uses-Scintilla Juris-Powers-Doctrine of Perpetuities applied to Future Springing and Shifting Uses-Resulting Uses executed-Their Nature.

Re-introduction of Direct Permanent Trusts of Real Estate.

THE object with which the Statute of Uses was introduced, appears to have been to extinguish uses as distinct from possession or legal ownership, "to extirpate them by the roots," and with them "the mean to transfer lands and tenements without any solemnity or act notorious;" but the construction put upon the Act as passed was, that it was not intended that the practice of conveying to uses should be abolished, but only that the estate of the feoffee should be transferred to the person entitled to the use (a). In fact, the old modes of conveyance were continued, and legal operation was given to them by force of the statute (b). Thus uses continued to be raised by conveyances operating by transmutation of possession, and operating without transmutation of possession;—in the former case by feoffinent, by lease and release, by fine and by recovery, in the latter by bargain and sale, and by covenant to stand seised (c); and from the passing of the Statute of Uses, bargains and sales, and covenants to stand seised, had to be added to the list of legal, though not common law conveyances (d).

The conveyance itself, when there is a transmutation of possession,

*now as before the statute, needs no consideration; nor, as the

[*479] maker thereby departs with the actual possession of the land, is any consideration necessary to give effect to the uses.

But in the case

of a Bargain and sale, and of a Covenant to stand seised, as the bargainor or the covenantor does not (independently of the operation of the Statute of Uses) divest himself of the possession of the land, a consideration is still necessary to raise the use, money or money's worth, in the

(a) Lord Bacon's Read. 33; 1 Co. Rep. 124 a; Cruise, i. 365; Sanders on Uses, i.

p. 86.

(b) Lord Bacon's Read. 39; Gilbert, 139, 40; Sanders, i. 154, 5; and see Shepherd's Touchstone, 507, § 4.

(c) See Butler's note to Co. Litt. 271 b, iii. 3; v. supra, p. 449. At first, parol de

clarations seem to have been admitted as constituting a covenant to stand seised; but in the reign of Mary it was decided that there must be a deed, as indicative of a settled resolution, Collard v. Collard, 2 Roll. Ab. 788. (d) V. supra, 477; and see Hayes' Introd. i. 74, 75.

Practice of Conveyancing after the Statute of Uses.

479

instance of a bargain and sale;-though a farthing expressed to be paid, or rather acknowledged under seal to be received, suffices,-marriage or consanguinity in the instance of a covenant to stand seised (a). Had it not been for certain technical requisites in regard to bargains and sales, and covenants to stand seised, uses would probably have ceased to be raised by deeds operating by transmutation of possession, and the Statute of Uses would have been the sole conveyance (b).

The seisin and possession which is brought to the use by the statute, is, by force of the statute, a seisin and possession in fact, not in law; not a mere title to enter upon the land, but an actual estate (c). It is not necessary that the word "use" should be employed in order to bring the statute into operation; any words showing the intent to confer on another the beneficial title are sufficient, even in a deed (d). But notwithstanding the generality of the words in the statute, namely, "contract, agreement, will, or otherwise," it has always been held, that contracts which ,contemplate actual conveyances to be subsequently made, do not raise uses within the statute (e).

As the statute, the instant an use was raised, converted it into an actual possession on the part of the cestui que use, a great number of the incidents that formerly attended it in its fiduciary state as regards the feoffee and the cestui qui use, were now, of course, at an end. The land could not escheat or be forfeited by the act or default of the feoffee nor be aliened by him to a purchaser discharged of the uses, nor be liable to dower or curtesy on account of the seisin of such feoffee; the reason is, that the legal estate never vests in him for a moment, but is instantaneously transferred to the cestui qui use, as soon as the use is declared. On the other hand as the use and the land were now convertible terms, the use became liable to dower, curtesy, and escheat, in consequence of the seisin of the cestui que use, who was now become, in legal language, the terre-tenant also; uses likewise as we have seen were no longer devisable by will (f). The estate of the cestui qui use also *became subject to all the rules in regard to estates at the common law (g); indeed, such were the aim and end of the statute.

[*480]

On reference to the terms of the statute, it will be seen that, in order that the statute may operate upon the uses which are within its range, so as to convert them into possession, there must be, first one person seised to the use of another; and, secondly, an use in esse; but whether it be limited in possession, remainder, or reversion, is immaterial (h).

Though it was at first doubted whether the feoffee must not be seised in fee simple, it has long been determined that tenant in tail and tenant for life, indeed all persons having a legal estate of freehold, may be seised to an use. If the use is greater than the estate out of which it is

(a) Hayes' Elem. View, 12, 13.
(b) Ibid. p. 14; supra, p. 450.
(c) Cruise, Use, ch. iii. § 35, p. 358.
(d) Hayes' Elem. View, p. 50.

(e) Sanders on Uses, p. 114; Hayes' Introd. 97.

(2 Bla. Com. 333; Hayes' Introd. 58. One of the consequences is, that when a mere trustee of the legal estate conveys without the consent of the beneficial owner

of the legal estate to the use of a stranger, such use, though unsupported by any consideration, and even with notice, on the part of the alienee, confers the legal estate by force of the statute, though under similar circumstances the transfer of an use could not have been sustained before the statute.

(g) Cruise, Use, ch. iii. § 4, p. 349. (h) Sugd. on Powers, i. 9, ed. 1845; et v. Cruise, i. p. 349.

480 Nature and Qualities of Uses after the Statute-Limitations.

limited, it will cease upon the determination of that estate, though it will be good in the mean time (a).

It is to be observed, that the feoffee or grantee to uses, in reference to this statute, is always a person whose seisin is at the common law; and, as respects the uses, only for a momentary period of time. The seisin acquired under the statute itself cannot be the medium of serving an use, so that such use should be executed as a legal estate, by reason of the rule which has been adopted in the construction of the statute, which will be noticed hereafter, that no use can be raised upon an use (b). The cestui que use must, as before mentioned, be a different person from him who is seised to a use; for the words of the statute are, "When any person or persons stand or be seised, &c., to the use, confidence, or trust of any other person or persons," &c. Lord Bacon, in reference to this subject, observes, "That the common law ought so to be expounded, that where the party seised to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law" (c).

An estate in fee-simple or fee-tail, for term of life, for years, or otherwise, or in remainder or reversion, may be limited to the cestui que use (d), just as similar quantities of interest might have been limited by way of fiduciary use, and which interests by the effect of the statute become legal estates.

*As a man might make a feoffment to the use of his wife before [*481] the statute, so now the use in such case is executed in the wife by the statute (e).

Not only corporeal but incorporeal hereditaments, such as advowsons, tithes, and rents, are within the statute; so that where lands are conveyed to A. and his heirs, to the use, intent, and purpose that B. or that B. and his heirs may receive a rent, the rent is executed (f). Nothing however can be conveyed to uses, but that of which a person is seised, or to which he is entitled at the time, for in law every disposal supposes a precedent property. No person, therefore, can convey an use in land, of which land he is not actually seised in possession, or entitled to in remainder or reversion, when the conveyance is made (g).

When the Statute of Uses first became the subject of consideration with the Courts of Law, it was held by the judges, that no uses should be executed which were limited against the rules of the common law; and the courts, as will presently be noticed, have so far adhered to this construction of the statute, that the same technical words of limitation are now required in the creation of estates through the medium of uses, as in the creation of estates at common law (h). But the statute having enacted, that the estate of the feoffees to uses should be vested in the cestui que use, after such quality, manner, form, and condition, as they

(a) Cruise, Use, ch. iii. p. 350, 351. (b) Hayes' Elem. View, p. 16, 17. (c) Cruise, Use, ch. iii. § 26; i. p. 354. Many illustrations were given, p. 355, et seq.

(d) Cruise, Use, ch. iii. vol. i. p. 354, §

Ibid. § 25.

(f) Butler's note to Co. Litt. 271 b, iii. 4. Cruise, Use, ch. iii. p. 353, § 20. But now by stat. 8 & 9 Vict. c. 106, sup. p. 291, contingent interests may pass.

(h) Ibid. ch. iv. § 1 & 2, p. 362, 3.

Future Uses-Uses conformable and not conformable to Common Law. 481

had before, in or to the use, confidence, or trust that was in them,-and the Court of Chancery, having, as before observed, treated all gifts by way of use as substantive gifts, and therefore permitted a limitation of an use even in fee or in tail to commence in futuro, disregarding the laws of tenure which required a preceding estate of freehold to support them as being from their nature wholly inapplicable, and having also held that the use or right of enjoyment might change from one person to another on subsequent events, even though the original use were granted or limited in fee-the Courts of Law in process of time admitted limitations of these kinds in dispositions by way of use; and held, that the statute would execute them in the cestui que use, after such quality, form, and condition as he had in use, though it might be contrary to the rules of the common law (a). Thus, if an estate be conveyed by A. to B. to the use of B. for life, and after the expiration of a year, or one day, or any other limited period, from his death, to the use of his children, or to the children of C.; in neither case, the *mode of limitation [*482] being only capable of taking effect by executory use, and not by way of remainder, will the children be defeated by reason of the interposition of the interval between the death of the tenant for life and the time when the interests of the children are to commence, as would be the case on a similar limitation at common law; the uses will be executed in them, in interest, as they come into existence (b), to take effect in possession at the time limited after the death of the tenant for life. Hence, by the effect of the statute, two classes of uses became the subject of legal cognizance, namely, uses which did conform in point of limitation to the common law, and uses which did not conform to the common law (c).

As to uses which conform to the common law, they have all the qualities and incidents of estates limited purely at the common law; the mode of their creation is the only difference (d). Uses so limited are governed throughout by the rules of the common law (e); thus, when the limitations are to the use of A. for life, and after his death to the use of the children of B., no child born after the determination of A.'s estate, can take under the use so limited to the children; for the common law requires that the remainder should not only vest, but vest indefeasibly at that period (ƒ). In this respect uses executed by the statute did not exactly conform to uses in their fiduciary state, for as to them, so far as we can judge, no such rule prevailed (g).

(a) Cruise, Use, ch. i. p. 363, § 3; Gilbert, by Sugd. 148. 152, note; 2 Fonbl. 17; Hayes' Introd. 115.

(b) Mr. Hayes has inadvertently passed over an obvious error which has crept into his text in illustrating the distinction above pointed out (Introd. to Convey. p. 120), which, with his sanction, I have corrected. A similar slip is to be found also in one of the illustrations of an equally distinguished writer (Mr.Jarman, Powell on Devises, i. p. 303), though the latter has corrected it in the same page. The error is, that a case is put which assumes, that children may suc

cessively come into existence after the death
of the parent. The error is so plain that it
cannot mislead; I notice it only in order to
observe, that if such an inadvertence can
pass the observation of so distinguished a
writer as Mr. Hayes, what may not an author
of lower qualifications apprehend, even
when he may bestow his utmost attention?
(c) Hayes' Elem. View, p. 22, 23.
(d) Ibid. p. 23; and see p. 41.

(e) Ibid. 30. 41; v. supra, p. 156, et seq.
(f) Ibid. 42, 3.

(g) Therefore perhaps the statute, by turning the use into a legal estate, did not,

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