11. Defeazance.

II. Of convey

11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated (z) or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law (a); and therefore only indulged (45); no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment,) and so also annuities, conditions, warranties, and the like, were always liable to be recalled by defeazances made subsequent to the time of their creation (b).

II. There yet remain to be spoken of some few conveyrate by virtue of ances, which have their force and operation by virtue of the

ances that ope

the stat. of uses.

Of the nature of uses and trusts.

statute of uses.

Uses and trusts are, in their original, of a nature very simi

(z) From the French verb defaire, infectum reddere.

(a) Co. Litt. 236.
(b) Ibid. 237.

no case is bound by the covenant of
the lessee, to build a house for the
lessor any where off the premises, or
to pay money to a stranger. (Spen-
cer's case, 5 Co. 16.) The assignee
is not bound by a covenant broken
before assignment. (3 Burr. 1271.
See Com. Dig. Covenant.) If an
underlease is made even for a day less
than the whole term, the underlessee
is not liable for rent or covenants to
the original lessor, like an assignee of
the whole term. (Doug. 184.)

An assignee is liable for rent only
whilst he continues in possession

under the assignment. And he is held not to be guilty of a fraud, if he assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. (1 B. & P. 21.)

(45) A defeazance is now seldom resorted to, as it is a much preferable course to make the conditions apparent in the deed itself, so that the complete nature of the transaction may appear in one and the same instrument.

As to defeazances of bonds, or judgments, see post, p. 342.

lar, or rather exactly the same: answering more to the fideicommissum than the usus fructus of the civil law: which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance (c). But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one,

in confidence that he *should convey it, or dispose of the [* 328 ] profits, at the will of another. And it was the business of a particular magistrate, the prætor fidei-commissarius, instituted by Augustus, to enforce the observance of this confidence (d). So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in curtesy, for which the remedy was only by intreaty or request (e). In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits (f). As, if a feoffment was made to A. and his heirs, to the use of (or in trust for) B. and his heirs ; here, at the common law, A. the terre-tenant had the legal property and possession of the land, but B. the cestuy que use was in conscience and equity to have the profits and disposal of it (46).

(c) Ff. 7. 1. 1.

(d) Inst. 2, tit. 23.

(e) Ff. 43. 26. 1; Bacon on Uses,

8vo. 306.

(f) Plowd. 352.

(46) Uses evaded, without overturning, the common law. The estate was regularly transferred by a common law conveyance to some person as a trustee, and he, at law, was the absolute owner of the property; so much so, that the real owner would have been deemed a trespasser had he entered without the authority, express or implied, of the legal tenant. But,

in equity, the legal tenant and his
heirs were by degrees considered the
mere nominees of the person by
whom the estate was conveyed, and
were deemed bound to execute all his
directions in regard to the estate.
After the relation of trustee and ces-
tui que use was thus established, all
the refinements which we now meet
with in settlements of real property,

Their first introduction into our law.

This notion was transplanted into England from the civil law, about the close of the reign of Edward III.(g), by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses (h): which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution of such trusts in the Court of Chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet, if a testator had enfeoffed another to his own [* 329 ] use, and so was *possessed of the use only, such use was devisable by will. But we have seen (i) how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5, with respect to religious houses.

Their establishment by the

Yet, the idea being once introduced, however frauducourts of equity. lently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will (47), and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till, at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately

(g) Stat. 50 Edw. III. c. 6; 1 Ric. II. c. 9; 1 Rep. 138.

(h) See pag. 271.
(i) Pag. 272.

soon became established in equity.
(Sugden's Introduc. to Gilb. on Uses
and Trusts.)

(47) For, the will of cestui que use
affected only the equitable right to
the land, which was not subject to
the feudal rule of law; and it was
thought reasonable, upon a distinction

started between the land and the use of the land, that the cestui que use might dispose of the profits by will; the legal estate still continuing in the feoffee to uses. (Wright's Law of Ten. 172, 174; and see Chudleigh's case, 1 Rep. 123 b; S. C. 1 Anders. 323.)

attainted the other. Wherefore, about the reign of Edw. IV., (before whose time, Lord Bacon remarks (k), 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.

doctrine of uses.

Originally it was held that the chancery could give no Progress of the relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI., with respect to the heir (1); 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 (m). But a purchasor for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also, it was held, that neither the king or queen, on account of their dignity royal (n), nor any corporation *aggregate, on account of its limited capacity(o), [330 ] 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 (p): 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.

the use is inse

possession, could

use.

On the other hand the use itself, or interest of cestuy que Nothing whereof use, was learnedly refined upon with many elaborate dis- parable from the tinctions. And, 1. It was held that nothing could be grant- be granted to a ed to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities quæ ipso usu consumuntur (q): or whereof the seisin could not be instantly given (r). 2. A use could not be raised with- Uses could not out a sufficient consideration. For where a man makes out a sufficient a feoffment to another, without any consideration, equity

(k) On Uses, 313.

(1) Keilw. 42; Year-book, 22 Edw. IV. 6.

(m) Keilw. 46; Bacon of Uses, 312. (n) Bro. Abr. tit. Feoffm. al Uses,

31; Bacon of Uses, 346, 347.

(0) Bro. Abr. tit. Feoffm. al Uses,
40; Bacon, 347.
(p) 1 Rep. 122.
(g) 1 Jon. 127.
(r) Cro. Eliz. 401.

be raised with

consideration;

were descen

dible in the same manner as inheritances in possession;

and might be assigned or devised:

presumes that he meant it to the use of himself (s) (48), unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions (t). But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration (u). 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession (w) (49); for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties (x), or be devised by last will and testament (y); for, as the legal estate in the soil

(8) See pag. 296.

(t) 1 And. 37.

(u) Moor, 684.

(48) See ante, p. 296. In the second section of the 3rd chapter of Gilbert on Uses, p. 222, the law is in substance thus laid down. If a feoffment be made, or a fine be levied, or recovery be suffered, without consideration, and no uses be expressed, the use results to the feoffor and his heirs. But if any uses be expressed, it shall be to those uses, though no consideration be had; and herein is the difference between raising uses by fine, feoffment, or other conveyance operating by transmutation of possession, and uses raised by covenant; for, upon the first, if no uses were expressed, it is equity that assigns the feoffor to have the resulting use; by the law, the feoffor has parted with all his interest; (see Cave v. Holford, 3 Ves. 667;) but where he expresses there can be no equity in giving him the use against his own will. On the other hand, in case of a covenant there can be no use without a consideration; for the covenantee in such case can have no right by law, and there is no reason why equity should give him the use. (And see Calthrop's case, Moor, 101; Stephen's case, 1

uses,

(w) 2 Roll. Abr. 780.

(x) Bacon of Uses, 312.
(y) Ibid. 308.

Leon. 138; Jenkins' Cent. 6, case 36; Mildmay's case, Rep. 176; 2 Roll's Ab. 790.)

(49) Chief Justice Eyre (in Cave v. Holford, 3 Ves. 667,) said, a use which results is the original use; and this is not a mere dry proposition, productive of no legal consequence; the course of descent is regulated by it. For instance, in the case of a conveyance by a man seised ex parte materná, if the use results, it results to him in the same manner: so it is where the use is expressly limited to the party from whom the estate moved; it would be in him as his old estate, and go to the heirs ex parte materná. (Co. Litt. 13 a; Abbot v. Burton, Salk. 590; Martinv.Strachan, 5 T. R. 107, n.) But, since this note was first published, it has been enacted, by the statute of 3 & 4 Gul, IV. c. 106, s. 3, that, when any land shall have been limited, by any assurance executed after the last day of December, 1833, to the party conveying or to his heirs, such person shall be considered to have acquired the same as purchaser, and not to be entitled thereto as his former estate.