given by a feoffee, was sufficient to entitle him to the use of the lands of which he was enfeoffed. But the absence of such a consideration caused the use to remain with, or more technically to result to, the feoffor, according to the rules of Chancery in ancient times. And this doctrine has now a practical bearing on the transfer of legal estates; the ancient doctrines of Chancery having, by the Statute of Uses, become the means of determining the owner of the legal estate, whenever USES are mentioned. But the modern Court of Chancery takes a wider scope, and will not withhold or grant its aid, according to the mere payment or non-payment of five shillings: thus, circumstances of fraud, mistake, or the like, may induce the Court of Chancery to require a grantee under a voluntary conveyance to hold merely as a trustee for the grantor; but the mere want of a valuable consideration would not now be considered by that court a sufficient cause for its interference.(t)1

By the recent act to confer on the County Courts a limited jurisdiction in equity, it is enacted among other things, that these courts shall have and exercise all the power and authority of the High Court of Chancery in all suits for the execution of trusts in which the trust estate or fund shall not exceed in amount or value the sum of five hundred pounds. (u) This act came into operation on the first of October, 1865.(v)

In the construction and regulation of trusts, equity is said to follow the law, that is, the Court of Chancery *generally adopts the [*152] rules of law applicable to legal estates; (w) thus, a trust for A. for his life, or for him and the heirs of his body, or for him and his heirs, will give him an equitable estate for life, in tail, or in fee simple. An equitable estate tail may also be barred, in the same manner as an estate tail at law, and cannot be disposed of by any other means.

(u) Stat. 28 & 29 Vict. c. 99, s. 1.

But

(w) 1 Sand. Uses, 269 (280, 5th ed.)

Morgan, 1 Brown's Ch. 216; Fearne on Remainders, 121, 124 to 148; Pratt v. McCawley, 8 Harris, 264. The principle thus alluded to in the text was thus clearly stated by Sir T. Plumer, in the Marquis of Cholmondeley v. Clinton, 2 Jacob & Walker, 148:

"If the absolute owner of the equitable estate were to be considered for every purpose, in a court of equity, as he is in a court of law, viz. as a mere tenant at will, how could he be allowed to exercise any acts of

the decisions of equity, though given by rule, and not at random, do not follow the law in all its ancient technicalities, but proceed on a liberal system, correspondent with the more modern origin of its power. Thus, equitable estates in tail, or in fee simple, may be conferred without the use of the words heirs of the body, or heirs, if the intention be clear: for, equity pre-eminently regards the intentions and agreements of parties; accordingly, words which at law would confer an estate tail, are sometimes construed in equity, in order to further the intention of the parties, as giving merely an estate for life, followed by separate and independent estates tail to the children of the donee. This construction is frequently adopted by equity in the case of marriage articles, where an intention to provide for the children might otherwise be defeated by vesting an estate tail in one of the parents, who could at once bar the entail, and thus deprive the children of all benefit. (x) So if lands be directed to be sold, and the money to arise from the sale be directed to be laid out in the purchase of other land to be settled on certain persons for life or in tail, or in any other manner, such persons will be regarded in equity as already in possession of the estates they are intended to have: for, whatever is fully agreed to be done, equity (x) 1 Sand. Uses, 311 (337, 5th ed.) Watkins on Descents, 168, (214, 4th ed.)

ownership over it, to alienate or devise it, or transmit it to his heirs? How could any of the rules of property or the common or statute law, by which estates of inheritance are governed, apply upon this principle, to an equitable estate? The harmony and uniformity of the laws of real property would be destroyed, if it was to depend on the estate being legal or equitable; if the legal estate were governed by one set of rules, and the equitable by another. But the mischief of such discordance has long been obviated. By allowing the analogy to prevail throughout, the same laws apply equally to both. The equitable estate is the estate at law in a Court of Equity, and is governed by all the same rules in general as all real property is, by limitation. The equitable estate in this court is the same as the land, and the trustee is considered as a mere instrument of conveyance. Twenty years ago,' (said Lord Mansfield in Burgess v. Wheate, 1 Eden, 224), I imbibed this principle; everything I have heard, read or thought of since, has confirmed that prin

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ciple in my mind.' And after illustrating this doctrine, he concludes with stating, that on clear law and reason, and the great authority of the case of Casborne v. Scarfe (to which I shall hereafter have occasion to refer,) cestui que trust is actually and absolutely seised of the freehold in consideration of this court, and therefore that the legal consequences of actual seisin of a freehold shall, in this court, follow for the benefit of one in the post. Lord Hardwicke explains the analogy, and the necessity there was for establishing it, in part of his judgment in Hopkins v. Hopkins, which has been cited; that part of it which is relied upon as tending to negative the analogy in the instance of the statute of limitations, will be hereafter considered. The same doctrine is stated in Banks v. Sutton, 2 P. W. 713, to have been laid down by Lord Cowper, and is distinctly recognized and adopted by the Master of the Rolls in Phillipps v. Bridges, 3 Ves. 126." The whole of the judgment pronounced in this case is well worthy the attention of the student.

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considers as actually accomplished. And in the same manner if money, from whatever source arising, be directed to be laid out in the purchase of land to be settled in any manner, equity will regard the per[*153] sons on whom the lands are to be settled as already in the possession of their estates. (y) And in both the above cases the estates tail directed to be settled may be barred, before they are actually given, by a disposition duly enrolled, of the lands which are to be sold in the one case, or of the money to be laid out, in the other.(z) Again, an equitable estate in fee simple immediately belongs to every purchaser of freehold property the moment he has signed a contract for purchase, provided the vendor has a good title ;(a) and it is understood that the whole estate of the vendor is contracted for, unless a smaller estate is expressly mentioned, the employment of the word heirs not being essential.(b) If, therefore, the purchaser were to die intestate the moment after the contract, the equitable estate in fee simple, which he had just acquired, would descend to his heir at law, who would have a right (to be enforced in equity) to have the estate paid for out of the money and other personal estate of his deceased ancestor; and the vendor would be a trustee for the heir, until he should have made a conveyance of the legal estate, to which the heir would be entitled. Many other examples of equitable or trust estates in fee simple might be furnished.

An equitable estate in fee will not escheat to the lord upon corruption of the blood, or failure of heirs of the cestui que trust; (c) for a trust is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee will hold the lands discharged from the

trust which has so failed; and he will accordingly *have a right [*154]

to receive the rents and profits without being called to account

by any one. In other words, the lands will thenceforth be his own. (d) But it has been held that, if lands be purchased by a natural born subject in trust for an alien,(e) the crown may claim the benefit of the purchase ;(f) although, if lands be directed to be sold, and the produce

(y) 1 Sand. Uses, 300 (324, 5th ed.)

(z) Stat. 3 & 4 Will. IV. c. 74, ss. 70, 71, repealing stat. 7 Geo. IV. c. 45, which repealed stat. 39 & 40 Geo. III. c. 56.

(a) Sugd. Vend. & Pur. 146, 162, 13th ed.

(b) Bower v. Cooper, 2 Hare, 408.

(c) 1 Sand Uses, 288 (302, 5th ed.)

(d) Burgess v. Wheate, 1 Wm. Black. 123; 1 Eden, 177: Taylor v. Haygarth, 14 Sim. 8; Davill v. New River Company, 3 De Gex & Smale, 393; Beale v. Symonds, 16 Beav. 406. (e) See ante, p. 62.

(ƒ) Barrow v. Wadkin, 24 Beav. 1. See however Rittson v. Stordy, 3 Sm. & Giff. 230, qu.?

given to an alien, the crown has then no claim. (g) In the event of high treason being committed by the cestui que trust of an estate in fee simple, it is the better opinion that his equitable estate will be forfeited to the crown.(h) By a recent statute(?) both the lord's right of escheat, and the crown's right of forfeiture, have been taken away in the case of the failure of heirs or corruption of blood of the trustee, except so far as he himself may have any beneficial interest in the lands of which he is seised. (k) The descent of an equitable estate on intestacy follows the rules of the descent of legal estates; and, therefore, in the case of gravelkind and borough-English lands, trusts affecting them will descend according to the descendible quality of the tenure.(1)

Trusts or equitable estates may be created and passed from one person to another, without the use of any particular ceremony or form of words.(m) But, by the Statute of Frauds(n) it is enacted (o) that no action shall be brought upon any agreement made upon consideration *of marriage, or upon any contract or sale of lands, tenements, [*155] hereditaments, or any interest in or concerning them, unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is also enacted,(p) that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing; and further, (q) that all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by his last will. Trusts arising or resulting from any conveyance of lands and tenements, by implication or construction of law, and trusts transferred or extinguished by an act or operation of law, are exempted from this statute. (r) In the transfer of equitable estates it is usual, in practice, to adopt conveyances applicable to the legal estate; but this is never necessary. (s) If writing is used, and duly signed, in

(g) Du Hourmelin v. Sheldon, 1 Beav. 79; 4 My. & Cr. 525.

(h) 1 Hale, P. C. 249.

(i) Stat. 13 & 14 Vict. c. 60, repealing stat. 4 & 5 Will. IV. c. 23, to the same effect. (k) Sect. 47.

(7) 1 Sand. Uses, 270 (282, 5th ed.)

order to satisfy the Statute of Frauds, and the intention to transfer is clear, any words will answer the purpose. (t)

*Trust estates, besides being subject to voluntary alienation, [*156]

are also liable, like estates at law, to involuntary alienation for the

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payment of the owner's debts. By the Statute of Frauds it is provided, that if any cestui que trust shall die, leaving a trust in fee simple to descend to his heir, such trust shall be assets by descent, and the heir shall be chargeable with the obligation of his ancestors for and by reason of such assets, as fully as he might have been if the estate in law had descended to him in possession in like manner as the trust descended.(u)2 And the subsequent statutes to which we have before referred, for preventing the debtor from defeating his bond creditor by his will, and for rendering the estates of all persons liable on their decease to the payment of their just debts of every kind, apply as well to equitable or trust estates as to estates at law.(x)

The same Statute of Frauds also gave a remedy to the creditor who had obtained a judgment against his debtor, by providing(y) that it should be lawful for every sheriff or other officer to whom any writ should be directed, upon any judgment, to deliver execution unto the party in that behalf suing of all such lands and hereditaments as any other person or persons should be seised or possessed of in trust for him against whom

(t) Agreements, the matter whereof is of the value of five pounds or upwards, now bear a stamp duty of sixpence, which may be denoted by an adhesive stamp, on which, if used, every party who signs the agreement must at the same time write his name, and the date of the day and year of writing the same, otherwise the stamp will be of no avail. Stats. 23 Vict. c. 15; 23 & 24 Vict. c. 111, s. 12. If they contain 2,160 words or upwards, there is a further progressive duty of sixpence for every entire quantity of 1,080 words, or fifteen folios, over and above the first 1,080 words. Declarations of trust made by any writing, not being a will, bear the same duty as ordinary deeds; stats. 55 Geo. III. c. 184; 13 & 14 Vict. c. 97; ante, p. 139.

(u) Stat. 29 Car. II. c. 3, s. 10. Before this provision the Court of Chancery had refused to give the bond creditor any relief. Bennet v. Box, 1 Cha. Ca. 12; Prat v. Colt, ib. 128. These decisions, in all probability, gave rise to the above enactment. See 1 Wm. Black. 159; 1 Sand. Uses, 276 (289, 5th ed.)

(x) Stat. 3 & 4 Wm. & Mary, 14, s. 2; 47 Geo. III. c. 74; 11 Geo. IV. & 1 Will. IV. c. 47; 3 & 4 Will. IV. c. 104; ante, pp. 75, 76. (y) Stat. 29 Car. II. c. 3, s. 10.

1 See ante, page 87 n. 1.

2 This provision of the Statute of Frauds has been re-enacted in some of our states, but not in others: passim, 1 Greenl. Cruise, 413; but it is conceived that in all of them, in every case in which a trust estate was of

such a character as, in other respects, to be governed by the same rules as a legal estate, it would, equally with it, be made liable for the debts of its owner. Heath v. Bishop, 4 Richardson's Eq. R. 46.

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