feited by the act or defect of the feoffee, nor be aliened to any purchasor discharged of the use, nor be liable to dower or curtesy, on account of the seisin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will. upon [ *334 ] The use need not always be instant the con executed the veyance is made. *The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the meanwhile the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them (n), or to the use of A. and his heirs till B. shall pay him a sum of money, and then to the use of B. and his heirs (0). Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations of uses, was also adopted in favour of executory devises (p). But herein these, Contingent or which are called contingent or springing uses (42), differ from springing uses. an executory devise; in that there must be a person seised to such uses at the time when the contingency happens, else use. 1st, Shifting, or secondary uses, which may, by a recovery, defeat the shifting take effect in derogation of some other estate, and are either limited expressly by the deed, or are authorized to be created by some person named in the deed. 2ndly, Springing uses, confining this class to uses limited to arise on a future event, where no preceding use is limited, and which do not take effect in derogation of any other interest than that which results to the grantor, or remains in him, in the mean time. 3rdly, Future or contingent uses, are properly uses to take effect as remainders; for instance, a use to the first unborn son of A., after a previous limitation to him for life, or for years, determinable on his life, is a future or contingent use; but yet does not answer the notion of either a shifting or a springing use. Contingent uses naturally arose, after the statute of 27 Hen. VIII., in imitation of contingent remainders. The first class, that is, shifting or secondary uses, are at this day so common that they pass without observation. In every marriage settlement, the first use is to the owner in fee until marriage, and after the marriage to other uses. Here, the owner, in the first instance, takes the fee, which upon the marriage ceases, and the new use arises. But a shifting use cannot be limited on a shifting use: and shifting uses must be confined within such limits as not to tend to a perpetuity. (See ante, notes (15) and (16) to chap. 11). But a shifting use may be created after an estate-tail, to take effect at any period, however remote; because the tenant in tail for the time being As to the second class, or springing uses, before the statute of Hen. VIII. there was no mischief in an independent original springing use, to commence at a distant period, because the legal estate remained in the trustee. After the statute, too, the use was held to result to, or remain in, the person creating the future use, according to the mode of conveyance adopted, till the springing use arose. This resulting use the statute executed, so that the estate remained in the settlor till the period when the use was to rise: which might be at any time within the limits allowed by law, in case of an executory devise. When springing uses are raised by conveyances not operating by transmutation of possession, as such conveyances have only an equitable effect until the statute and use meet, a springing use may be limited by them at once: but where the conveyance is one which does operate by transmutation of possession, (as a feoffment, fine, recovery, or lease and release), two objects must be attended to, first, to convey the estate according to the rules of common law; secondly, to raise the use out of the seisin created by the conveyance. Now, the common law does not admit of a freehold being limited to commence in futuro. (See ante, p. 143, and note (8) to chapter 9). As to the third class, or future or contingent uses, where an estate is limited previously to a future use, and the future use is limited by way of remainder, it will be subject to the rules of shifting uses. they can never be executed by the statute; and therefore, if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever (q): whereas, by an executory devise, the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee (r); because, though that was forbidden by the common law in favour of the lord's escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were, before the statute, permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held, that a use, though executed, Secondary or may change from one to another by circumstances ex post facto (s); as, if A. makes a feoffment *to the use of his in- [ *335] tended wife and her eldest son, for their lives, upon the marriage the wife takes the whole use in severalty; and, upon the birth of a son, the use is executed jointly in them both (t). This is sometimes called a secondary, sometimes a shifting use. And, whenever the use limited by the deed expires, Resulting uses. or cannot vest, it returns back to him who raised it, after such expiration, or during such impossibility, and is stiled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail; here, till he marries, the use results back to himself; after marriage it is executed in the wife for life: and, if she dies without issue, the whole results back to him in fee (u). (g) 1 Rep. 134, 138. Cro. Eliz. 439. common law, and, if the previous estate is not sufficient to support it, will be void. (See ante, p. 168, and note (6) to chapter 11). Future uses have been countenanced, and springing uses restrained, by what is now a firm rule of law, namely, that It was likewise held, that the Revocation of (t) Bacon of uses, 351. if such a construction can be put upon uses. uses originally declared may be revoked (43) at any future time, and new uses be declared of the land, provided the (43) Every shifting or secondary use which arises from the act of some person nominated in the deed, whereby the original limitations are created, must be a use arising from the execution of a power. All powers of this kind are, in their nature, powers of revocation and new appointment; for, the new uses and estates created under the appointment, must necessarily (to the extent of such appointment) revoke, defeat, or abridge the uses, which existed and were executed previously to the new limitation. (Bingham's case, Moor, 611. Tar back v. Marbury, 2 Vern. 511). And it is not necessary that an express power of revocation should be limited prior to the power of appointing new uses: but, after the power of revocation and appointment of new uses has been once exercised, an express power of revocation or of new appointment, must be reserved in the deed appointing the new uses, other wise the execution under the original power will be irrevocable. (Hele v. Bond, decided in the House of Lords, upon the opinion of all the judges, reported in Prec. in Cha. 474, and cited in 2 Ves. sen. 77 & 211; as also in 2 Burr. 1148). A feoffment, or other conveyance, whereby the feoffee, grantee, &c., is in by the common law, cannot be made subject to a power of revocation: but powers to revoke uses were allowed before the statute of Hen. VIII., and that statute executing the possession as the party had the use, revocable estates may be created under the statute of uses. (Co. Litt. 237 a). Powers to raise new estates (which, as we have seen, must necessarily be, pro tanto, powers of revocation of the estates previously existing,) are technically described as either simply collateral, or not simply collateral, but relating to the land, that is, limited to one that had, hath, or shall have, an estate or interest in the land. Powers of this last description are again subdivided into powers appendant, or annexed to the estate in the land, and powers in gross. A power is appendant, when it is given to, or reserved by, a man having an estate in the land, and the execution of the power falls within the compass of his estate; and unless it be executed during the continuance of that estate, it can never be executed. A power is in gross, where a man hath an estate and power of revocation, and the execution of the power doth not fall within the compass of his estate; there the parting with his own estate only will not prevent the execution of the power. But if, by fine or feoffment, he absolutely passes the entire estate, and divests all remainders, the power of appointing new uses will be destroyed; as it may by releasing the power of appointment to the remainder-man. (Edwards v. Slater, Hardr. 415, 416. Lampet's case, 10 Rep. 48). It should be observed, that a fine or recovery by a donee of a power does not necessarily, and in all cases, operate as a destruction of the power. That doctrine was, indeed, countenanced by the first decision of the case of Herring v. Brown; (1 Ventr. 368, 371); but, from that judgment there was an appeal, and it was reversed, on the ground that the fine, and a deed subsequently executed, declaring the uses of the fine, were but one conveyance, grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself, and therefore esteemed a part of it, upon events specifically mentioned (w). And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead (x). And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind; who (as Lord Bacon observes (y)) have always and both together were an execution, and not an extinguishment of the power. It was agreed, that a fine alone, without a deed declaring the uses, would have extinguished the power; but it was said not to be so where there was a deed to declare the intention of the parties at the time of levying the fine; and though the date of the deed in question was subsequent to the fine, yet that was for no other reason but because the fine ought to relate to the precedent term, though in truth it might be levied in the vacation, and so the deed might be executed at the same time the fine was acknowledged; therefore it would be unreasonable to make a forfeiture, or extinguishment of a right, merely by relation, which is but fictio juris. (Carthew, 23, 24. Skinner, 187; and see Doe v. Whitehead, 2 Burr. 711, with Tyrrell v. Marsh, 3 Bing. 38, in which last mentioned case the final decision of Herring v. Brown was referred to, as a judgment consistent with justice, and confirmed by subsequent decisions). However, Mr. Sugden (in the fifth section of the first chapter of his Treatise on Powers) cautions his readers (that is, every legal student), not to suppose that the case of Herring v. Brown, de (y) On uses, 316. cided, that a declaration of uses at any time after the fine would prevent the forfeiture, and operate as an execution of the power. Where it is recited in the deed declaring the uses, that the fine was, at the time of levying it, intended to enure to the uses expressed, it seems that no party to the deed, nor any one claiming under him, can insist upon the forfeiture; the deed would operate as an estoppel, as against such persons. (Carth. 24). But, as against strangers, Mr. Sugden conceives, it would be left to a jury to say whether the fine was, or was not, levied to the uses subsequently declared. (Bushell v. Burland, Rep. temp. Holt, 736, S. C. 11 Mod. 197). A power of revocation and new appointment, is simply collateral, where a man hath no present interest in the land, and by the revocation of the estate is not to take or dispose of any thing. In this case, a fine or feoffment of the land is no extinguishment of the power; for, under such a power, the interest must be claimed by a stranger, and no man is estopped from demanding his own right by the act of another, with whom he was no privity. (Edwards v. Slater, Hardr. 415. Sugden on Powers, ch. 1, sec. 4, p. 48). |