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"They now consider a trust-estate (either when expressly declared or resulting by necessary 9 implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law:* and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds.† The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchasor without notice; which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to forfeiture, to leases and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents, than from any well grounded principle.¶ It hath also been held not liable to escheat to the lord, in g 2 Freem. 43.

h 1 Chanc. Rep. 254. 2 P. Wms. 640.

9 Ninth edition reads, "The statute of frauds, 29 Car. II. c. 3. having required that every declaration, assignment, or grant of any trust in lands or hereditaments (except such as arise from implication or construction of law) [see note 63, page 531 shall be made in writing, signed by the party, or by his written will; the courts."

9 Ninth edition reads "such."

Ninth edition inserts here, "to executions on judgments, stat utes, and recognizances (by the express provision of the statute of frauds)."?

* Cited, 5 Munf. 143; 8 Ohio, 501; 1 Yeates, 231.

t-t Quoted, 6 Fla. 447; 63 Am. Dec. 222; Kirby, 370.

+ Cited, 5 Binn. 133; 6 Am. Dec. 409; 3 Yeates, 271.

- Quoted, 3 Ga. 16. Cited, 1 Yerg. 9; 24 Am. Dec. 432.

1 Cited, equity will relieve against forfeiture through act of trus tee, Tayl. 373.

¶ Cited, 42 N. H. 306; 18 N. J. L. 402.

consequence of attainder or want of heirs: because the trust could never be intended for his benefit. But let us now return to the statute of uses.

The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporeal freeholds: the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. But this now has given way to

[338] 12. A twelfth species of conveyance, called a covenant to stand seised to uses; by which a man, seised of lands, covenants in consideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman;* for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage ‡

13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale [see note 64, page 531] of lands; which is a kind of a real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such bargain a trustee for, or seised to the use of, the bargainee; and

i Hardr. 494. Burgess and Wheat. Hil. 32 Geo. II. in Canc. k Bacon Use of the law. 151.

*Cited, 59 Ga. 678; 6 Cal. 313; Smith (N. H.) 348.

+-+ Quoted, 5 Cowen, 98; 15 Am. Dec. 443; 59 N. Y. 139.
* Cited, 47 N. H. 335.

then the statute of uses completes the purchase:1 or, as it hath been well expressed,m the bargain first vests the use, and then the statute vests the possession.* But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall or with the custos rotulorum of the county.† Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before; " which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible it is to [339] foresee, and provide against, all the consequences of innovations! This omission has given rise to

14. A fourteenth species of conveyance, viz. by lease and release; first invented by serjeant Moore, soon after the statute of uses [see note 65, page 531], and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy) have formerly doubted it's validity. It is thus contrived. A lease, or rather bargain and salė,

1 Ibid. 150.

m Cro. Jac. 696.

9 Ninth edition inserts, "attorney

n See pag. 142.

o 2 Mod. 252. general to Charles I."

- Quoted, 5 Denio, 232; 29 Ga. 23. Cited, 1 Mo. 554; 35 Ind. 476; 5 Ala. 588; 39 Am. Dec. 340; 5 Ark. 341; 5 Cowen, 105; 15 Am. Dec. 448; 3 Barb. Ch. 245; 63 N. C. 609; 29 Ga. 489; 3 Hayw. (Tenn.) 5; 20 Mass. 529; 12 Johns. 74.

+ Cited, 1 Conn. 88; 6 Am. Dec. 212; 1 Yeates, 173; 4 Yerg. 420; Smith (N. H.) 348; 7 Leigh, 712.

‡ Cited, 7 N. H. 526.

1-1 Quoted, 20 Mass. 525. 2 BLACKST.-44.

upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrollment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore being thus in possession, is capable of receiving a release of the freehold and reversion; which we have seen before, must be made to a tenant in possession: and accordingly, the next day, a release is granted to him. This is held to supply the place of livery of seisin; and so a conveyance by lease and release is said to amount to a feoffment.**

15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and,

16. Deeds of revocation of uses; hinted at in a former page, and founded in a previous power, reserved at the raising of the uses, to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation." And this may suffice for a specimen of conveyances founded upon the statute of uses; and will finish our observations upon such deeds as serve to transfer real property.

[340] Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or incumber, lands, and discharge them again of which nature are, obligations or bonds, recognizances, and defeazances upon them both.

p pag. 324.

q See appendix. No. II. 1, 2,

r Co. Litt. 270. Cro. Jac. 604.

8 pag.335.

t See appendix. No. II. pag. xi,

u Co. Litt. 237.

*Cited, 1 Conn. 86; 6 Am. Dec. 210; 20 Mass. 533,

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1. An obligation or *bond, is a deed whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force:* as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands.† How it affects the personal property of the obligor, will be more properly considered hereafter.

If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and unconditional:‡ for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards [341] becomes impossible by the act of ▾ See appendix. No. III. pag. xiii.

**Quoted, 4 Rand. 179. Cited, 45 Ala. 252: 81 Ill. 231; 55 Md. 141; Gratt. 602; as to meaning of "obligation," 6 Minn. 426.

+-+ Quoted, 8 Vt. 469.

+ Cited, 50 Miss. 427.

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