and effect of the SECT. VI. that there was then no occasion for entry or The operation claim, within the five years, to avoid a fine stat. 1 Rich. 3. levied by cestuique use for life with proclamations; such fine not working a forfeiture, The rule, that neither a feoffment nor fine by cestuique use for life amounted to a forfeiture of his estate, must have been established upon one of these grounds;-that by the feoffment or fine the use and legal estate passed to the grantee during the feoffor's life, while the remainder continued in the first feoffees; or that, by the fine or feoffment, a base fee passed to the grantee, determinable upon the death of cestuique use by the entry of the feoffees. (36.) Delamere's casef was, in substance, thus; R. D. in the 13th Hen. 8. enfeoffed T. S and others in fee to the use of himself and his wife, and the heirs of their two bodies; and in default of such issue, remainder to R. D. in tail; remainders over. R. D. in the 26th Hen. 8. enfeoffed W. D. in fee; afterwards R. D. died, and the heir of the surviving feoffee entered to revive the ancient uses; and upon solemn argument it was held, that the entry of the feoffees was lawful. It was said in this case, that by the feoffment of R. D. the fee-simple in the lands passed; but that after the death of the Plowd. 348 to 353. 1 Co. 128. SECT. VL and effect of the feoffor the feoffees might re-enter to revive the ancient uses; but that, although this The operation right of entry remained in the feoffees, yet stat. 1 Rich, 3until their regress the fee-simple was out of them. This case was considered as establishing a principle different from the determination in the case cited from Dyer; and it was observed, that this was determined upon solemn argument, but that from Dyer was only the opinion of the Judges, without any argument 5. The case from Dyer appears irreconcilable to the first case cited from Brookes's Abridgment; but perhaps it is not altogether inconsistent with Delamere's case. The sta tute of Richard renders the feoffment of cestuique use valid against all claiming any title or interest in the lands only to the use of the feoffor or his heirs. Now when the feoffor in the latter case died, the feoffees did not claim to the use of the heirs, but of the wife, of the feoffor; in which case they were neither restrained by the statute, nor the common law. But in the case from Dyer, the first feoffees certainly did claim to the use of the heir in tail of cestuique use. The only doubt appears to have been, whether the words of the statute, "claiming the same only as heirs of the feoffor, &c." should $1 Co. 128. b. 129. a (37.) SECT. VI. extend to the heirs special, as well as a gene (38.) If the case from Dyer be correct', a feoffment by cestuique use in tail, after the statute of Richard the third, had the same operation in barring the claims of the issue, as a fine would have had b. I say, as a fine would have had; for notwithstanding the effect of it was at first doubted, it appears to have been settled, that a fine would have bound the issue in tail of cestuique use, and also the entry of the feoffees, while they claimed to the use of the issue.. But according to the doctrine in Delamere's case, neither the feoffment nor the fine would have barred any remainder expectant on the determination of the estate tail; for whenever the entail ceased, the feoffees would have had a right to enter to revive the ancient uses; in that case they would not have claimed to the use of the feoffor, or his heirs, but to the use of a stranger. I must observe, that Gilbert, in his Treatise on the Law of Uses and Trusts, seems to have been in an error, when he asserts, that a recovery suffered by a cestuique use in trust, did not, after the statute 4 Rich. S. bind the issue in tail: for notwith h See B. N. C. 147. i Dyer, 329. Sed contra Year Book 19 Hen. 8. 13. 4 Hen. 7. 18. с B. N. C. 146. March. N. C. 140. Year Book 27 Hen. 8. 20. Gilp, Uses, 32. and effect of the standing the doubt entertained in 30 Hen. 8.o, SECT. VI. it appears from the words of, and the sub- The operation sequent construction upon, the statute, that stat. 1 Rich. 3. the recovery bound the issue claiming as heirs only of the grantor or recoveree1. . (39.) interest not tute Rich. 3. (2.) When the statute 1 Rich. 3. passed, ause, of trusts and as Sir Francis Bacon observes, appeared "in within the sta "his likeness; for there is not a word spoken "of taking the profits to describe a use by, "but of claiming to a use." The statute does not even mention the words trust and confidence, which are so particularly expressed in the statute 27 Hen. 8. c. 10. It is evident, that the statute extended merely to uses de-, clared upon a seisin or legal estate in feeh: and that a trust or confidence declared upon the seisin or estate of a tenant in tail, or for life, or the possession of a lessee for years, was not a fiduciary interest, within the meaning of the use described by the statute. This construction was adopted, when courts of equity, tinctured with the prejudices of the common law, had conceived, that the estates of tenant in tail, for life, and years, e Vide Bro. N. C. 147. "It was holden per "plures in the Chancery, "if a recovery be had, in "which cestuique use in "tail is vouched, and the “demandant recovers, then "this shall bind the issue." Bro. feoff. al. Uses, pl. 56. March's N. C. 137. See 8 Bac. Uses, 27. h See 1 Co. 128. a. b, Year Book 19 Hen. 8. 13, 4 Hen. 7. 18. Bassett v Manxell, Plowd. 3. ૐ (40.) SECT. VI. were, from their nature, incapable of being The operation conveyed to a use. and effect of the stat. Rich. 3. Estates tail. Estates for life. (41.) For as to the estate or seisin of a tenant in tail, it was held, that no use could be limited upon it: 1st, because the tenure of itself created a valuable consideration; 2d, because the statute de donis had appropriated and fixed the estate tail to the donee and the heirs of his body, so that neither he, nor they, could execute the use. I must here observe, that the exception in Rich. 3. extended only to tenant in tail of the legal estate, and not to cestuique use tenant in tail. With respect to the estate or seisin of tenant for life, the consideration of tenure be tween the lessor and lessee appears to have. been incompatible with the use. It is expressly stated in 2 Roll. Abr. 781. pl. 6. that if a lease be made for life, that shall be to the use of the lessee; and in Dyer (8 b.), it is said that, "if the feoffees make a lease "for life, or an estate tail; in these cases, "if they be argued closely, the law will prove that the lessee or donee cannot be "It was adjudged by the advice of all the "justices, that tenant in "tail could not stand seised "to a use." Year Book 27 H. 8. 10. a. 2 Co. 78. a. Bro. Feof. al. Uses, pl. 40. Co. Litt. 19. b. Plowd. 555. 2 Roll. Ab. 780. Jenk. Cent. 195. Gilb. on Uses, 11.205. and the note to 22 Vin. 181. pl. 2. * B. N. C. 146. |