SECT. IX. The requisites to be observed in raising uses. (68.) (69.) use was made on the feoffment, a pecuniary consideration, or the want of it, could not vary the use so declared". Therefore, if A. had delivered money to J. S. for the purpose of purchasing lands for him, and J. S. had purchased them to his own use, no use could have resulted to, or be implied in, A. So if A. in consideration of 100l. paid to him by B. had enfeoffed B. and C.; the declaration of the use to B. and C. would have been good, notwithstanding the payment of the money by B. only ". When no declaration of the use was made, the consideration paid by the feoffee or grantee created a use for him. If neither a con-sideration had been paid or reserved, nor a declaration made, the use would have resulted to the grantor, and he would have been in as of the old use. It was therefore determined, that if a man, seised ex parte materná, had made a feoffment, levied a fine, or suffered a recovery without having declared the use, and without consideration, the use would have resulted to him and his heirs on the of his mother. This observation will apply part a 1 Co. 100. b. Har. Co. Litt. 12. b. N. 2. 2 Salk. 591. 3 Lev. 406. 2 Roll. Ab. 780. 2 P. W. 139. See 22 Vin. 184. pl. 4, 5. and the cases collected in the notes. SECT. IX. to be observed to the conveyance by lease and release, as I shall endeavour hereafter to explain. So if The requisites there had been two joint tenants, the one in in raising uses, fee, and the other for life, and they had le vied a fine without having declared the use, it would have resulted to them according to their estates or interests in the land". In like manner, if A. seised in fee of an estate, had joined with B. in levying a fine, without a declaration of the use, it would have resulted to A. only, and his heirs, It should seem, that any pecuniary consideration, however trifling it might have been, or any rent reserved, however inconsiderable, would have been sufficient to raise the use to the feoffee, conuzee, or recoverord. The above remarks applied only to conveyances in fee. The conveyance or creation of of estates tail, for life, or years (so far as related to the doctrine of uses), depended upon different principles . In respect of grants of incorporeal property, it must be noticed, that if a man seised of a rent-charge in fee, had made a conveyance of it, without having declared the use, and without any consideration, the Beckwith's case, 2 Co. 58. a. Ibid. d Porter's case, 1 Co. 24. a. 2 Roll. Ab. 787, 788. * See ante, 40 to 50. (70.) Szer. IX. to be observed grantee would have stood seised to the use of The requisites the grantor and his heirs. But if the proin raising uses. prietor of lands had granted a rent-charge thereout unto a stranger, the law would not presume, that such grant was intended for the grantor's use, though no use had been declared, nor consideration paid; and upon a conveyance of a seignory or rent in tail, for life, or for years, without declaration of the use, and without consideration, the grantee would have been seised to his own use b. A substance or (71.) SECT. X. (4.). There should have been a sufficient substance or hereditament, out of which the use might have arisen. Thus, all local inheritances, as lands, houses, rents in esse, reversions, remainders, liberties, and franchises, might have been conveyed to uses, But it was different as to personal inheritances, such as annuities. So, it was said, that uses could not have been raised out of such things, quæ ipso usu consumuntur, as commons, ways in gross, or authorities granted to a man and his heirs to hunt in a park, chase, or foresti. X. I shall now examine the properties of The properties the use. of a use. Perk. S. 530. * Ibid. 531. Ibid. 537. SECT. X. of a use. (1.) It was descendible according to the rules of the common law respecting estates of The properties inheritance; the courts of equity having, It was descent in this instance, adopted the maxim, æqui- dible. tas sequitur legem. There might have been a possessio fratris of a useb; though indeed lord Bacon calls this a vulgar opinion ; observing, that it meant nothing more, than that the chancellor would consult with the rules of law, where the intention of the parties did not specially appear. The rule, however, was certainly established in chan cery. So the use of lands held in borough English would have descended to the youngest son, and that of gavelkind to all the sons ; and where there was a custom of a manor, that the lands should descend to the eldest daughter, in default of sons, it was determined, that the use should descend in like (72.) SECT. X. (2.) The use was devisable before the staThe properties tute of wills. After the conquest a devise of a use. It was devisable. (73.) It was alienable. Cestuique use had neither jus could not operate upon the lands; because, by the common law the ceremony of livery of seisin was necessary to the transfer of them; and because it was contrary to the nature of a feud, that the feudatory should dispose of it by will. But the courts of equity, under the colour of allowing a devise of the use, did in effect permit the legal interest in the lands to be devised f. An infant however was disabled from devising the use, (3.) As cestuique use might have devised, so he might have aliened or transferred the useh; and by the statute 1 Rich. 3. he might have conveyed the legal estate. But it is observable, that in the case of a feme covert, a fine was necessary to pass her use i (4.) But cestuique use, in respect to the in re, nor ad legal ownership of the land, had neither jus in re, nor ad remk. Therefore when in possession, he was considered merely as tenant, by sufferance'. He could not bring an ac (74.) See Wright's Ten, 172. See Year Book 21 Ed. 14. i Year Book 7 Ed. 4. k 1 Co. 121. b. W. Jones, 127. Bac. Uses, 5. 1 Year Book 15 Hen. 7. 2. 4 Ed. 4. 8. Bro. Feof. al. Uses, 39. Plowd. 3. a. (Basset v. Manxell.) See. 22 Vin. 286. pl. 2, 3. and |