uses as one of the most effective blows aimed at the feudal system.1 Some attempts, indeed, have been made to show that trusts existed in the reign of King Alfred; but the better opinion. seems to be that the instance referred to was the description of a tenure, and not the case of a trust. The probabilities are, that trusts were recognized before the statute of quia emptores (13 Edw. I.), and became frequent after that date; this probability being founded on authority, and being further strengthened by the fact alluded to by Mr. Finlason that we not unfrequently fall into error when we assume that "because proceedings are not mentioned as being judicially decided upon, they did not exist." Without, however, entering into any elaborate research, it may be safely assumed that in the reign of Edward III., the beneficial enjoyment of land as distinguished from the legal ownership was distinctly recognized; and it now becomes necessary to trace briefly the nature of this beneficial interest, its development into that permanent equitable estate known as a use, the nature of this estate prior to the famous statute of uses of 27 Henry VIII.; the effect of that statute, and the character of the equitable interests which it left untouched, and which together with certain other like interests, under the title of the modern trusts, fell peculiarly under the jurisdiction of the Court of Chancery.5 52. Before the statute of uses there appears to have existed a distinction between the technical "use" and a "trust." 6 a trust," says Bacon, "is not special nor transitory, but general and permanent, there it is a use." The permanent "use" was the natural result and outgrowth of the "special trust." Two 1 Co. Litt. 191, a, note, sec. VI. 11. 2 Sanders, U. and T. 7. 3 See 'reference to Bro. Abr. tit. "Feoffment al Uses," in Reeve's Hist. Eng. L., vol. 2, p. 575, note (Finlason); and 1 Spence Eq. 439, note f; 447. In the Statute 50 Edw. III. c. 6, the taking the profits by one where the estate at law is in another is recognized; and in 7 Rich. II. c. 12, the word use (oeps) is first mentioned. Bacon, 23, 25; 1 Spence Eq. 440. 5 See Perry on Trusts, & 300. 6 Essay on Uses, 9. See also Hutchins v. Heywood, 50 N. Hamp. 497. classes of beneficial interests consequently arose. First, the use or simple trust, of which it is said "it is not like a rent out of the land, but is like a collateral thing annexed to the person touching the land; and it is but a confidence for the usage of land, that is to say, a confidence that the feoffees to whom the land has been given shall permit the feoffor and his heirs, and those whom they should designate to receive the profits of the land, and that the feoffees should make such estates of the land as they (the feoffors) should limit, and so their estate is but a confidence." Second, the special trust: which was subdivided into the "special trust lawful," as if a man had enfeoffed another to the intent or in trust to be re-enfeoffed, or to the intent to be vouched, or to the intent to suffer a recovery; and the special trust unlawful, or covinous trust, as a trust to defraud creditors, or for maintenance, for defeating the tenancy to the præcipe, the statutes of mortmain, or the wardship of lords. The courts of common law took no cognizance of these equitable interests, and the only remedy which the beneficiary enjoyed was by means of a subpoena out of chancery. Trusts of both descriptions had their origin either in fraud or fear. In fraud, for they were designed originally by ecclesiastics for the purpose of evading the statutes of mortmain, and were subsequently made use of in order to effectuate some covinous intent on the part of the feoffee, such as to defraud a lord of his wardship or creditors of their remedy for their debts; in fear, for the effectiveness of this method of defeating strictly legal rights, was soon readily taken advantage of during the disputes between the Ilouses of York and Lancaster, which began with Bolingbroke's usurpation in the reign of Richard II., in order to avoid the forfeiture with which the alternately successful parties visited the estates of their adversaries. Uses and special trusts, therefore, grew into a system, and they came to be governed by wellestablished principles. As beneficial interests rested solely upon the conscience of the feoffee, corporations were held not to be capable of a seizin to use, for they had no souls. The king or See Sanders, Uses and Trusts, 6; Lewin on Trusts, 2; 1 Spence Eq. 448. 2 Delamere's Case, Plowden, 352 6. 3 Sanders, 57-87; Jenkins, 195. : queen could not be a feoffee to uses, for it was thought inconsistent with the royal dignity that such a confidence should be enforced against a sovereign at the suit of a subject. Hence, when the Duke of Gloucester, to whom many estates had been conveyed in trust, acquired the crown, a special statute was passed in order to remedy the mischief which would otherwise have arisen from the incapacity of enforcing trusts as against the king.1 In addition to confidence of person, privity of estate was also necessary. No person could be seized to a use who was not in of the same estate as that of which the use had been declared. All persons who came in by title paramount, all persons who were in in the post and not in the per, took the estate free of the use. Such was the lord who was in by escheat, or a tenant by the curtesy. So also a disseisor, abator, or intruder.2 A consideration was necessary to raise a use where the conveyance was one which did not operate by transmutation of possession; and no use could be raised either of personal inheritances, such as annuities, or of things quæ ipso usu consumuntur, such as commons or ways in gross. While the feoffee to uses was, in the eye of the law, the real owner, the cestui qui use could exercise many acts of ownership over the use which no holder of a legal title could enjoy over the land itself. He could devise it, he could alien it,3 and it descended according to the rules of common law in respect to inheritances of land. His right to the land, however, was a mere chose in action, a mere right to sue out a subpoena in chancery, and it was liable to be defeated by the alienation of the holder of the legal title. It was subject to the feudal duties of the feoffee to uses, and to the dower of his wife, and to the danger of being forfeited for his treason or felony; and it could not, originally, be enforced against his heir.* In the reign of Richard III. a very important statute was passed affecting the rights and powers of the cestui qui use. That statute, after reciting the mischiefs growing out of un 1 Stat. 1 Ric. III., c 5. 2 Sanders, 55, 61, 62; 1 Spence Eq. 445. 3 But a subpoena was not assignable in case of a bare trust and confidence. See Bacon, Uses, note to p. 16, Rowe's edi- known and privy feoffments, provided in substance that the cestui qui use should have the power of alienating not only the use but the possession also, or, in other words, that an alienation by the cestui qui use should "have the same effect as if he had the legal ownership." It has been argued by Mr. Sanders that prior to the statute of Richard III. it had been determined that on a feoffment for life or in tail, or a grant for a term of years, there could be no declaration of a use, and that a subpoena would not lie against a person so seized, the reason being "that as to the estate or seizin of a tenant in tail no use could be limited upon it: first, because the tenure of itself created a valuable consideration; and, secondly, because the statute de donis had appropriated and fixed the estate tail to the donee and the heirs of his body, so that neither he nor they could execute the use;" and as to the tenant for life, "the consideration of tenure between the lessor and lessee appears to have been incompatible with the use;" while as to the interest of a termor, "it was supposed that the contract between the lessor and lessee, and the consideration upon which the latter took the lease, were incompatible with and repugnant to the nature of a use declared to any other person." The point is not of any great practical importance, except as illustrating the gradual extension of equitable interests to all degrees of estates, for the statute of Henry VIII. included uses declared upon the seizin of a tenant for life (showing their existence at that time); and courts of equity, after the passage of that statute, began to enforce confidences declared upon terms for years, not as the old-fashioned uses, but as trusts.2 The point is also of importance as showing the true nature and extent of a trust, for, the definition sometimes given of a trust, viz., that it is a use not executed by the statute of Henry VIII.,3 is too limited, if use is employed in its strict technical sense. The modern trust includes not only those technical uses which 1 Sanders U. and T. 28. It will be observed that this argument has no application where the life estate was not created but merely transferred by the conveyance. See Lewin, 6; 1 Cruise Real. Prop. 350. 2 See Sanders, U. and T. 32. 31 Cruise Real Prop. 380; Perry on Trusts, 300. were not executed by the statute, but also equitable interests which never were considered uses,' and did not, therefore, fall within the provision of the statute. These equitable interests, in common with the unexecuted uses, received the name of trusts. It may be remembered here that the term trust did not include every interest in land recognized in the Court of Chancery. The equity of redemption of a mortgagor, for example, was an equitable interest analogous to a trust, but nevertheless distinct and different from it.2 To return to the statute of Richard III.; a difficulty arose which seems not to have been foreseen, viz., that while the power of alienation was conferred upon the cestui qui use, no restraint was imposed upon the like power which already existed in the feoffee to uses. Hence if a conveyance were made by the latter, his alienee might and did interfere with the enjoyment of the alienee of the cestui qui use. This highly unsatisfactory condition of titles led, among other things, to the enactment of the famous statute of uses, 27 Henry VIII., c. 10. 53. The provisions of this statute are well known. It enacted in substance that wherever any person, by any assurance, stood seized to the use of another for any estate, the cestui qui use should be deemed to be in lawful seizin and possession of the same estate in the land itself as he had in the use. In the language of conveyancing, it transferred the use into a possession, or executed the use. Its object, according to the preamble, was "for the extirping and extinguishment of all such subtle practised feoffments, fines, recoveries, abuses, and errors heretofore used and accustomed in this realm, . . and to the intent that the king's highness or any other his subjects of this realm shall not in any wise hereafter, by any means or inventions, be deceived, damaged, or hurt by reason of such trusts, uses, and confidences;" and in addition to conferring upon the cestui qui use the legal title to, and the possession of the land, it gave him the power to protect his possession by action or entry against any person "for any waste, disseizin, trespass, condition broken, or any other offence" touching the same. 1 Sanders U. and T. 32. 2 Id. 279; Tucker v. Hunstan, 17 Ves. 133. |