with considerable readiness by all. For, besides the power of disposing of the land by will, which it afforded, other technical doctrines of tenure were disregarded, an important instance of which was, that a trust should not be forfeited for treason or felony (c), a doctrine which might be expected to find great favour in the times of the Wars of the Roses, when alterations of the fortunes of the ruling powers, and consequent accusations of treason against the unsuccessful, were frequent.

This doctrine, however, was interfered with by the legislature (d); but whether, even now, a trust is forfeitable for treason (though the better opinion is that by virtue of 33 Hen. 8, c. 20, it is so), yet is not beyond the possibility of doubt.

For these and other reasons of a like character, about the reign of Edw. IV., (before whose time, lord Bacon remarks (e) there are not six cases to be found relating to the doctrine of uses), the courts of equity began to reduce them to something of a regular system.

Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. (378) This was altered in the reign of Henry VI., with Doctrine of uses. respect to the heir (ƒ); and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use (g). But a purchaser for a valuable * consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, And also it was held, [*526] that neither the king or queen, on account of their dignity royal (h), nor any corporation aggregate, on account of its limited capacity (i), could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use (j): because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir.

On the other hand the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession: as annuities, commons, and easements, quæ ipso usu consumuntur (k): or whereof the seisin could not be instantly given (1). 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself (m), unless he expressly declares it to be to the use of another,

(378) See 4 Kent's Com. 289-301; 2 Washb. Real Prop. (3d ed.) 407–422.

Descendible.

and then nothing shall be presumed contrary to his own expressions (n). But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration (o). 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession (p); for in this and many [*527] other respects aequitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deed between the parties (7), or be devised by last will and testament (r); for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee (s); to whom he was accounted by law to be only tenant at sufferance (t). 5. Uses were not liable to any of the feudal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c., are the consequence of tenure, and uses are held of nobody (u); but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use (x). 6. No wife could be endowed, or husband have his curtesy, of a use (y): for no trust was declared for their benefit, at the original grant of the estate. Though this was in early times modified by the court of chancery allowing a husband curtesy out of a use or trust (z). And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the origin of modern jointures (a). 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use (b). For, being merely a creature of equity, * the common law, which looked no [*528] farther than to the person actually seised of the land, could award no process against it.

Uses not subject to feudal burthens.

It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination, when once a departure was permitted from the rules of property established by the ancient law. These principal outlines will be fully sufficient to show the ground of lord Bacon's complaint (c), that this course of proceeding "was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease." To remedy these inconveniences abundance of statutes were provided, which made the lands liable to

(n) 1 And. 37.

(0) Moor. 684.
(p) 2 Roll. Abr. 780.

(7) Bacon of Uses, 312.
(r) lb. 308.

(8) Stat. 1 Ric. 3, c. 1. (t) Bro. Abr. ib. 23.

(u) See A.-G. v. Sands, Hard. 488.

(x) Jenk. 190. Ante, p. 396, 406.

(y) 4 Rep. 1; 2 And. 75.

(2) Ante, p. 247.

(a) See p. 262.

(b) Bro. Abr. tit. Executions, 90.

(c) Use of the Law, 153.

be extended by the creditors of cestuy que use (d); allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits (e); made him liable to actions of waste (f); established his conveyances and leases made without the concurrence of his feoffees (g); and gave the lord the wardship of his heir, with certain other feodal perquisites (h).

Statute 27 Hen. 8,

possession.

These provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10, which is usually called the statute of uses, c. 10, for trans. or, in conveyances and pleadings, the statute for transferring ferring uses into uses into possession. The hint seems to have been derived from what was done at the accession of king [* 529 ] Richard III.; who, having, when duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed (i), which ordained, that where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely enfeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the statute of Hen. VIII., after reciting the various inconveniences before-mentioned, and many others, enacts, that "when any person shall be seised of lands, &c., to the use, confidence, or trust, of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c., of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition as they had before in the use." The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession; thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity. It will be remarked that the word "seised" being the single word used in the statute (and not possessed), excludes from its operation copyholds and leaseholds. Though if a person be seised of a freehold to the use of another for a term of years, the statute will operate so as to give the legal term to that other (k). *The statute having thus not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the

Decisions of the courts of common law upon

the Statute of Uses.

[* 530]

interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same before were alone held capable of being seised to a use. tions were necessary for raising it, and it could only be

(d) Stat. 50 Edw. 3, c. 6; 2 Ric. 2, ss. 2, 3; 19 Hen. 7, c. 15.

(e) Stat. 1 Ric. 2, c. 9; 4 Hen. 4, c. 7, s. 15; 11 Hen. 6, c. 3; 1 Hen. 7, c. 1. (f) Stat. 11 Hen. 6, c. 5.

persons, however, as The same consideraraised of the same

(g) Stat. 1 Ric. 3, c. 1.

(h) Stat. 4 Hen. 7, c. 17; 19 Hen. 7, c. 15. (i) 1 Ric. 3, c. 5.

(k) Bacon Uses, 355; Jenk. 244, and see Dyer, 369; Poph. 76; 2 T. R. 448; 5 T. R. 124.

hereditaments as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy, on account of the seisin of such feoffee; because the legal estate usually does not rest in him for a moment, but is instantaneously transferred to cestuy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terretenant also; and they likewise were no longer devisable by will.

Conveyance to

construed than

assurances at

The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances uses less strictly to uses, than upon others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made: the common law. but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the meanwhile the * ancient use shall remain in the original grantor: as, when lands are [* 531] conveyed to the use of A. and B., after a marriage shall be had between them (7), or to the use of A. and his heirs, till B. shall pay him a sum of money, and then to the use of B. and his heirs (m). Which doctrine, when devises by will were again introduced, and considered as equivaSpringing uses. lent, in point of construction, to declarations of uses, was also adopted in favour of executory devises (n). But much learning and ingenious argument has been devoted to a point concerning these, which are called contingent or springing uses, as to whether there must be a person seised to such uses at the time when the contingency happens (o). This question has been set at rest by the legislature declaring that the future contingent or executory use (p) shall take effect without any continued existence of a seisin to uses. Thus, in both a conveyance to uses and in a will a fee may be limited to take effect after a fee (q); because, though that was forbidden by the common law in favour of the lord's escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were, before the statute, permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held that a use, though executed, may change from one to another by circumstances ex post facto (r); as, if A. makes a feoffment to the use of his intended wife and her eldest son, for their lives, upon the marriage the wife takes the whole use in severalty; and, upon the birth of a son, the use is executed jointly in them both (s). This is sometimes called a secondary, sometimes a shifting use. And, whenever the use lim

Shifting uses.

[* 532] ited by the deed expires, or cannot vest, it returns back, after such

(7) 2 Roll. Abr. 791; Cro. Eliz. 439. (m) Bro. Abr. tit. Feoffm. al uses, 30. (n) Ante, p. 334.

(0) See Sug. Powers, c. 1.

(p) 23 & 24 Vict. c. 38, s. 7.
(q) Pollexf. 78; 10 Mod. 423.
(r) Bro. Abr. tit. Feoffm. al uses, 30.
(8) Bacon of Uses, 351.

Resulting uses.

expiration, or during such impossibility, to him who raised it, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail; here, till he marries, the use results back to himself; after marriage it is executed in the wife for life: and, if she dies without issue, the whole results back to him in fee (t). A resulting use of this kind is not, however, considered to confer an estate by purchase upon the grantor, but is his former estate, and is so treated for purposes of descent. It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow was a deed of defeazance coeval with the grant itself, (and, therefore, esteemed a part of it,) upon events specifically mentioned (u). And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead (x). And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind; who (as Lord Bacon observes (y)) have always affected to have the disposition of their property, revocable in their own time, and irrevocable ever afterwards.

Instances in

ute does not execute the use;

so that the legal estate remains in the trustee.

rell's case, that

the statute does not execute a use declared

[*533]

By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, which the stat- that "no use could be limited on a use," (z) and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the * limitation of a farther use to another person is repugnant, and, therefore, void (a). And, therefore, on a feoffment to A. and his heirs, to the use of B. and his Decision in Tyr heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting that the instant the first use was executed upon a use. in B., he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down through a hundred uses upon uses, till finally executed in the last cestuy que use. And this has been still further extended, by declaring that a feoffment to A. and his heirs, to the use of A. and his heirs, to the use of B. and his heirs, has the effect of vesting the legal estate in A., and not in B. Even without the words "to the use of A. and his heirs," it was held, that where lands were the nature of the given to one and his heirs, in trust to receive and pay over the profits to another, this use was not executed by the statute; for the land must remain in the trustee to enable him to perform the under the name trust (b). Upon these distinctions courts of equity 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 (c). To this the reason of mankind assented, and the doctrine of uses was revived,

Use implied from

use declared.

Continuance of the old uses

of trusts.

(t) Bacon of Uses, 350; 1 Rep. 120.
(u) Post, p. 539.
(z) Co. Litt. 237.

(y) On Uses. 316.

Dyer, 155.

(a) 1 And. 37, 136.

(b) 1 Eq. Cas. Ab. 383, 384; 2 Taunt. 109; see 12 East, 455; 1 Nev. & P. 401; 1 Ves. & B. 485; 1 Scott, 542; 4 M. & W. 421.

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