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The courts of law held that no use could be limited on a

use;

affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.

By this equitable train of decisions in the courts of law, the power of the court of Chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, that "no use could be limited on a use (z)," and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a farther use to another person is repugnant, [*336] and therefore *void (a). And therefore, on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B., he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down through a hundred uses upon uses, till finally executed in the last cestuy que use †. Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised, but only possessed (b); and therefore, if a term of one thousand years be limited to A., to the use of (or in trust for) B., the statute does not execute this use, but leaves it as at common

that the statute did not extend

to terms of years;

nor to cases

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law (c). And lastly, (by more modern resolutions,) where where the trus- lands are given to one and his heirs, in trust to receive and

tee was to re

(z) Dyer, 155.

(a) 1 And. 37, 136.

+ Mr. Christian observes, that, "it is the practice to introduce only the names of the trustee and the cestui que trust; the estate being conveyed to A. and his heirs, to the use of A. and his

heirs, in trust for B. and his heirs; and

(b) Bacon law of uses, 335. Jenk. 244. (c) Poph. 76. Dyer, 369.

thus this important statute has been effectually repealed by the repetition of half a dozen words." [Per Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591.-ED.]

pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust (d) †.

(d) 1 Eq. Cas. Abr. 383, 384.

† Mr. Christian, in his note upon the text, says, "I should be inclined to think that the case as expressed by the learned judge would be construed an use executed by the statute. In the authority referred to in 1 Eq. Ca. Abr. 383, the trustees were first to pay legacies and annuities, and then to pay over the surplus to a married woman for her separate use. To prevent a trust from being executed by the statute in cases of this kind, it seems necessary that the trustees should have some control and discretion in the application of the profits of the estate, as to make repairs, or to provide for the maintenance of the cestui que trust. 1 Bro. 75. 2 T. R. 444. Where there is no such special circumstance in the grant, it appears to be equivalent to a direction to the trustees to permit the cestui que trust to take the profits of the estate, which is fully established to be an use executed. 1 Eq. Ca. Abr. 383.

"But if it is to permit a married woman to take the rents and profits for her separate use, the legal estate will be vested in the trustees, in order to prevent the husband from receiving them subject to no control. (7 T. R. 652)." [Doe v. Scott, 4 Bing. 507].

[In Swaine v. Burton, (15 Ves. 365), a devise was made to trustees, to the use of the said trustees and their heirs, which last words, were said by Lord Eldon, (in Hawkins v. Luscombe, 2 Swanst. 392), to be extremely important, to shew that the legal estate vested in the trustees. The rule is fully established, that, where there is any thing for the trustees to do, beyond

merely paying money over, they take the legal estate: (Tenny v. Moody, 3 Bing. 8. Silvester v. Wilson, 2 T. R. 451): it must be understood, however, that the legal estate remains vested in them, under a devise for particular purposes, so long only as the execution of the trust requires it, and no longer. (Doe v. Nicholls, 1 Barn. & Cress. 342). And where the purposes of the trust can be answered by a less estate than a fee-simple, it seems, a greater interest than is sufficient to answer such purposes, will not pass to the trustees; but the uses in remainder, limited after such less estate, will be executed by the statute. (Doe v. Simpson, 5 East, 171). When devisees in trust are directed to receive and pay over the rents and profits, the seisin remains in them, and the estate is not executed in the cestui que use; (Browne v. Ramsden, 8 Taunt. 564. Symson v. Turner, 1 Eq. Ca. Ab. 383); but, where lands are devised to trustees and their heirs on trust to permit A. to take the profits for his life, and afterwards to stand seised to the use of the heirs of A.'s body; this is a use executed in A. and he has an estate tail. (Broughton v. Langley, 2 Salk. 679). It has been thought "miraculous how this distinction ever came to be established, since good sense requires that, in both cases equally, the estate should be vested in the trustee." But the learned Judge who made this objection, submitted to the rule, as one that had become inveterate. (Doe v. Biggs, 2 Taunt. 112). This is extracted from 2 Hovenden's Supp. to Ves, jun. Rep. p. 412.-ED.]

ceive and pay over the profits to another.

But the courts

that, though

these were not uses, yet still

they were trusts which in conscience ought

Of the two more ancient distinctions the courts of equity of equity held, quickly availed themselves. In the first case, it was evident that B. was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of Chancery to seek to be performed. his remedy: and therefore that court determined, that, though these were not uses which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed (e). To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts; and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance (ƒ).

And those

a trust-estate

equivalent to

the legal ownership.

*However, the courts of equity, in the exercise of this new courts now hold jurisdiction, have wisely avoided in a great degree those mischiefs which made uses intolerable (44). The statute of frauds, 29 Car. II. c. 3, having required that every declaration, as[* 337] signment or grant of any trust in lands or hereditaments, (except such as arise from implication or construction of law), shall be made in writing signed by the party, or by his written will; the courts now consider a trust-estate (either when expressly declared, or resulting by such 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

(e) 1 Hal. P. C. 248.

(44) Lord Mansfield, (in Burgess v. Wheate, 1 W. Bla. 160), said, “in my apprehension, trusts were not on a true foundation till Lord Nottingham held the great seal. By steadily pursuing, from plain principles, trusts in all their consequences, and by some assistance from the legislature, a noble, rational,

(ƒ) Vaugh. 50. Atk. 591.

and uniform system of law has been since raised. Trusts are made to answer the exigencies of families, and all proper purposes, without producing one inconvenience, fraud, or private mischief, which the statute of Hen. VIII. meant to avoid."

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 (g); which, as cestuy que trust 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 executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds), 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 (45), more from a cautious adherence to some hasty precedents (h), than from any well-grounded principlet. It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs (i): because the trust could never be intended for his benefit (46). But let us now return to the statute of uses.

(g) 2 Freem. 43.

(i) Hardr. 494. Burgess & Wheate,

(h) 1 Chanc. Rep. 254. 2 P. Wms. Hil. 32 Geo. II. in Canc. 640.

(45) See ante, p. 137, note (39) to chapter 8.

(46) The reason more usually assigned is, that escheat only takes place

Mr. Christian observes, that "it has been decided, that when the legal and equitable estates meet in the same person, the trust or equitable estate is merged in the legal estate; as, if a wife should have the legal estate and the husband the equitable, and if they have an only child, to whom these estates descend, and who dies intestate without issue, the two estates having united, the descent will follow the legal estate, and the estate will go to an heir

on the part of a mother: and thus,

which appears strange, the beneficial interest will pass out of one family into another, between whom there is no connexion by blood. (Doug. 741).

"Before the statute of uses, there was neither dower nor tenancy by the curtesy of an use, p. 331. It is therefore an unaccountable inconsistency, that, since the statute, the husband should have curtesy of a trust estate, and that the wife should out of a similar estate be deprived of dower."

[ *338 ]

12. Covenants to stand seised to uses.

13. Bargain and sale.

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

*12. A twelfth species of conveyance, called a covenant to stand seised to uses: by which a man seised of (47) 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 (k), 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 (48) or marriage.

13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale 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 a bargain a trustee for, or seised to the use of, the bar(k) Bacon, Use of the Law, 151.

for want of a tenant. (See Williams v.
Lord Lonsdale, 3 Ves. 753, and ante,
chap. 15, pp. 244 et seq. with the notes
thereto).

(47) The covenantor must be seised
in possession, or entitled in remainder
or reversion, at the time of the execu-
tion of the deed; because the use must
arise out of the seisin, or right, which
the covenantor has at the time. (Yel-

verton v. Yelverton, Cro. Eliz. 401).

(48) Love and affection to an illegitimate child are not sufficient considerations to raise a use, in a covenant to stand seised. (Gerrard v. Worsley, Dyer, 374 a). A fortiori, long acquaintance and familiar intercourse, are not sufficient to raise a use. (Sharington v. Strotton, 1 Plowd. 302 a).

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