Besides this statute, parliament in the same year passed another act for the purpose of putting a stop to secret conveyances. This was the statute for "enrolment of bargains and sales," which provided for the registration of all bargains and sales of land whereby any estate of inheritance or freehold should be made to take effect in any person, or any use of the same should be made. The objects, however, which these statutes professed to have in view were soon defeated. The statute in regard to bargains and sales provided only for the enrolment of such deeds as attempted to pass freehold estates, and did not apply to terms for years. Hence arose the well-know system of conveyance by lease and release, whereby a lease for a year was made, by bargain and sale, and the lessee then being in possession by virtue of the statute of uses, became capable of receiving a release of the fee. The construction placed upon the statute of uses, also, limited its operation to a great degree. It was considered that copyholds did not fall within the purview of the statute, because it was against the nature of copyhold tenure, that any one should be introduced into the estate without the consent of the lord.2 It was decided that a use limited upon a use was not executed by the statute ;3 and also that where the feoffee to uses was to convey the land, or to collect and pay over the profits, the use was not executed. The uses which were not executed by the statute have been grouped by Mr. Sanders into six classes as follows: 1. Contingent uses, which are not executed during the suspense of the contingency; 2. Uses limited of copyheld lands; 3. Devises to uses;5 4. Active trusts, such as to pay over profits, convey, or sell; 5. Uses limited of chattel interests; 6. A use upon a use. Probably, however, all the classes into which the uses which survived the statute have been divided, may be grouped under two general heads: 1 27 Henry VIII., c. 16. Dyer, 155 a; Doe d. Lloyd v. Passingham, 2 Gilbert's Tenures, 170; Co. Litt. 272, 6 Barn. & Cres. 305; Sanders, 276. a; Butler's Notes, & viii. 2. 4 Sanders, 253. 336 Hen. VIII., B. N. C. 284. This was the decision of the common law courts, so that the statute of uses does not seem to have been very popular. Tyrrel's Case, 5 Though as to this, see Doe dem first, those uses which, though falling within the terms of the statute, were released from its operation by the construction put upon it by the courts, of which the use upon a use is an example; and, second, those uses which did not fall within the language of the statute, such as uses of chattel interests. Whatever subdivision, however, may be suggested by the convenience or fancy of authors, all of these equitable interests, now under consideration, may be treated as embraced in the one great family of modern trusts, the origin of which having been noticed, it will now be proper to proceed to the consideration of their different kinds, their manner of creation, and the purposes for which they are ordinarily called into existence. 54. Trusts in respect of the general nature of the duties of trustees, and the objects for which the trust is created, may be divided into active and passive, lawful and unlawful, executed and executory, private and public. An active or special trust scarcely requires definition. It exists when a trustee has certain duties to perform which render it necessary for the purposes of the trust, that the legal title should remain in him. When this is the case the cestui qui trust is entitled only to the beneficial interest, and cannot call upon the trustee to convey. For example, where there is a trust for the payment of debts, the trustee must necessarily have the legal title of the trust property in him in order to get in the assets, turn them into cash, and discharge the liabilities. The creditors whose debts are to be paid have, therefore, no right to the legal title of the property or to its possession. They have simply an interest, which a court of equity will protect, in seeing that the trust is properly carried out. A passive (or, as it is sometimes called, a simple) trust has been defined to be a trust in which the property is vested in one person upon trust for another, and the nature of the trust, not being qualified by the settlor, is left to the construction of the law. In this case the cestui qui trust has jus habendi, or right to be put in actual possession of the property, and jus disponendi, or the right to call upon the trustee to execute conveyances of the legal estate as the cestui qui trust directs.1 1 Lewin, 21. 55. A trust which at the time of its creation is a simple or passive trust, will be executed by the statute of uses, the mere circumstance that the word "trust" is used instead of the word "use" making no difference. But where a trust which has been once active becomes passive, or where for any reason the trustee is the holder of a mere dry legal estate, such a trust is not executed by the statute, but the legal title will remain in the dry trustee. The trustee, however, is bound to convey the legal title at the request of the cestui qui trust. In Pennsylvania, however, it has been decided that where there is a mere dry trust, no conveyance is necessary to vest the legal title in the cestui qui trust.3 But other authorities in the same State have held that a conveyance may be necessary, or at all events desirable, in order to prevent any doubt or cloud from resting on the title of the cestui qui trust. At one time no court possessed of equity powers existed in Massachusetts. It was accordingly held, while the law was in that condition, that a trust should be treated as a use executed, unless such a construction would be repugnant to the manifest intention of the instrument. It will be remembered, however, that the courts of that State now have equity powers.6 In some States, as in New York, Michigan, Louisiana, and Wisconsin, trusts have been abolished, except within very narrow limits. In the State last named, however, it has been held that passive trusts only were abolished by the statute, and that active trusts may still be created." The provisions of the statute of uses, and the construction put upon that act, have been already explained. In nearly all of the United States this statute is in force, or its provisions 1 Austen v. Taylor, 1 Eden, 361; Lewin on Trusts (4th ed.), 161. 2 Hill on Trustees, 316; Leonard's Lessee v. Diamond, 31 Maryl. 541; Sherman v. Dodge, 28 Verm. 30. 3 Kuhn v. Newman, 2 Casey, 227; Rush v. Lewis, 9 Harris, 72; Bush's Appeal, 9 Casey, 85; Bacon's Appeal, 7 P. F. Sm. 504; Rife v. Geyer, 9 Id. 393; Freyvogle v. Hughes, 6 Id. 228; Westcott v. Edmunds, 18 Id. 37. 4 Kay v. Scates, 1 Wright, 31; Dodson v. Ball, 10 P. F. Sm. 492. See, also, in this connection, Hayes v. Tabor, 41 N. Hamp. 621. 5 Norton v. Leonard, 12 Pick. 157. 6 Ante, p. 20, note. 7 Goodrich v. The City of Milwaukee, 24 Wis. 429. 8 Ante, pp. 60, 61. have been adopted by legislative enactments. The only exceptions to this rule appear to be Vermont,2 Tennessee, and Ohio,3 and, to a limited extent Virginia, North Carolina, Florida, Mississippi, Kentucky, Illinois, and California. Even in some States where the statute is not in force, and has not been supplied, uses are executed by a sort of common law. This theory was, indeed, pushed to great lengths in Pennsylvania, where it was at one time held that equitable were converted into legal estates in all cases except those of active trusts, and even then when the purposes of the trust did not furnish any legitimate reason for preserving it from being executed in the beneficiary. But this extreme position was subsequently abandoned by the courts, and the law restored to its former basis.7 The general tendency of the American courts is, perhaps, to give a very liberal effect to the statute of uses and the kindred acts. Thus the strict rule adopted in Tyrrel's case, that a use limited upon a use will not be executed, has been disapproved in Massachusetts; and it has been doubted by a learned author whether the rule in Tyrrel's case is to be regarded as a rule of construction in all or any of the United States. It must be remembered that the statute of uses did not extend to personalty; and this is perhaps the general rule throughout the United States, although the subject is, of course, regulated by the language of the particular statute in each State.10 When active duties are to be performed by the trustee, the See Perry on Trusts, & 299, note, for a detailed statement of the statutes and decisions in the different States; also Hill on Trustees, 230, note. See, also, Hutchins v. Heywood, 50 N. Hamp. 497. 2 Gorham v. Daniels, 23 Verm. 600. Helfenstein v. Garrard, 7 Ham. 276. Perry on Trusts, 299. 5 Bacon v. Taylor, Kirby, 365; Bryan v. Bradley, 16 Conn. 483; Guest v. Farley, 19 Missouri, 149. 6 Kuhn v. Newman, 2 Casey, 227; Whichcote v. Lyle, 4 Casey, 73; Bush's Appeal, 9 Casey, 83. also, Bacon's Appeal, 7 P. F. Sm. 504. In Ogden's Appeal, 20 P. F. Sm. 501, there was a trust for the sole and separate use of a feme sole not in contemplation of marriage; and it was held, that, as the separate use was void, the trust fell to the ground in spite of the fact that the trustees had active duties to perform. Consult, also, Yarnell's Appeal, 20 P. F. Sm. 335. 8 Per Dana, C. J., in Thatcher v. Omans, 3 Pick. 528. 91 Greenleaf's Cruise on Real Prop. 353, note. See, however, Croxall v. Shererd, 5 Wallace, 282. 10 Perry on Trusts, 303. rule in the United States is generally the same as in England, and the trust will not be executed.1 56. Trusts may be either lawful or unlawful. A lawful trust is one which is created for some fair and honest purpose recognized by law; such as for the payment of debts, for a married woman, for a proper charity, or the like. Trusts are unlawful when they are created for some object which is in contravention of public policy, or in violation of statutes. Thus a trust for a vicious or immoral purpose would be void at common law, because it is against public propriety and policy. So trusts in violation of the statutes of mortmain, of the statutes in regard to aliens, or of the law against accumulation, or the creation of perpetuities, are also bad.2 Equity, while it creates a new title, viz., the trust, will not uphold it for the purpose of violating the law. 57. Trusts are also either executed or executory. These terms have been already defined. The test, according to Lord St. Leonards, is this: Ias the testator been what is called, and very properly called, his own conveyancer? Has he left it to the court to make out from general expressions what his intention. is; or has he so defined that intention that you have nothing to do but to take that which he has given to you and to convert them into legal estates ?1 In an executed trust the instrument must be interpreted according to the rules of law, which are, in general, the same for equitable as for legal estates, although by such interpretation the intention may be defeated. Thus, if an estate is given to A. and his heirs, in trust for B., for life, with remainder to the heirs of B., the interest which B. will take will be construed under Stanley v. Colt, 5 Wallace, 119, 168; Leggett v. Perkins, 2 Comst. 297; Morton v. Barrett, 22 Maine, 261; Exeter v. Odiorne, 1 New Hamp. 232; Ashhurst v. Given, 5 W. & S. 327; Chapin v. Universalist Soc., 8 Gray, 580. A trust to "permit and suffer" the cestui qui trust to receive the rents and profits of an estate is not an active trust. Wagstaff v. Smith, 9 Ves. 520; Perry on Trusts, 306; Hill on Trustees, 233. 2 It would be impossible in a work like the present to notice these statutes in detail-they vary in different States. See Perry on Trusts, chap. xiii. 3 Supra, Introduction, chap. ii., p. 26. Egerton v. Brownlow, 4 H. L. Cas. 1, 210. Sackville-West v. Holmesdale, L. R. 4 H. L. Cas. 565; Glenorchy v. Bosville, 1 Lead. Cas. Eq 1, and notes. |