1 Ld. Raym. 290.

: Leon. 14.

could not make his own heir take as purchaser; he could not grant an estate of freehold to commence at a future period; he could not create a contingent remainder, without supporting it by an express particular estate of freehold: finally, he could not dispose of his lands by will, except in a very few instances by special custom; and consequently upon his death his real estate necessarily went to his heir-at-law, subject to his widow's right to dower, to the exclusion of all other persons who had claims upon his care and bounty. At an early period, various contrivances were resorted to in order to obtain indirectly objects which could not be effected through the simple rules and unbending forms of the ordinary assurances of the realm. Of these contrivances, that of feoffments upon confidence and to the intent that the feoffee would hold the land upon such uses and for such purposes as the feoffor should direct, is the only one to which it is necessary to advert. At what period this practice was first introduced is not very exactly known, but it did not become general till the reign of Edw. III., when it was adopted by the ecclesiastical orders to evade the statutes of mortmain.

The due execution of the feoffor's intention depending entirely on the good faith and honesty of the feoffee to uses, these feoffments necessarily gave rise to much fraud; but no remedy appears to have been applied till the reign of Rich. II., when John Waltham, bishop of Salisbury and chancellor, assumed jurisdiction, and attempted to enforce the due execution of the uses by writs of subpoena, -a jurisdiction which was not fully established until the reign of Edw. V. "An use," observes Lord Holt, in Jones v. Morley1," is defined in Chudleigh's case, to be a mere equitable interest, where one has the estate in the lands, and another takes the profits. The invention of them was of late time*, and the cause of the invention was to avoid the statute of mortmain2. Uses only affected the consciences of the feoffees to uses: then the clergy, having power over the consciences of men, and sitting in Chancery till the time of Henry VIII., compelled men to perform their agreements. These uses were kept secret, until they were discovered in the contentions between the Houses of Lancaster and York; at which time they were found very beneficial to save men's estates from escheats; and were tolerated by

*) "The invention of uses has been as long as mankind have been guided

by reason. (Per Manwood, J., Bro. Feoff. al Use.)

both parties for the common convenience; so that the greatest part of the estates in England were conveyed to uses. And in the reports at the time of Edw. IV. there are more of them mentioned than at any time before; and so being generally used, they were licked into form, and became the common conveyance."

1

310.

The idea of uses having been borrowed from the civil law, and uses having been administered previously to the statute under the control of ecclesiastical chancellors, their incidents and qualities were determined by a reference to the principles of the civil rather than those of the common law. Hence, although a feoffment was good without any consideration, the Court of Chancery would not compel the execution of a use unless it was raised by a sufficient consideration1, or there were express proof of a positive Bac. Tracts, declaration of the use, which, by reason of the declaration being frequently made by parol, the cestui que use was often unable to give, for that would have been to enforce a donum gratuitum, in direct opposition to the civil law maxim, that ex nudo pacto non oritur actio. Again, in the limitation of uses, the technical words employed for the limitation of estates at common law were held not to be necessary; and hence, if a sufficient consideration was given, the court decreed the absolute property of the use to be well vested in the purchaser without words of inheritance. Proceeding upon similar grounds, it was held, that, if a man made a feoffment to the use of A. for years, and afterwards to the use of the right heirs of B., the limitation over was good, and consequently, by means of uses, a freehold might be limited to commence in futuro. It was also determined that a power of revocation might be annexed to a use, whereby the grantor was enabled to revoke the uses he had declared, and appoint new uses to other persons, which the feoffee to uses was bound to execute; and on the same grounds a use might be limited in such manner as to change from one person to another upon a future contingency. It was also determined that the use was devisable; and that it was descendible according to the canons of the common law, in which last respect only does the Court of Chancery appear to have paid any attention to its rules.

An use, not being considered an estate in land, was not subject to tenure, and consequently was exempt from its oppressive burthens. For the same reason it was not liable to forfeiture or escheat. It was not extendible, because there was no process at common law but against legal estates; and

1 Tracts, 310.

being neither a chattel nor a hereditament, it was not assets in the hands either of the executor or the heir. As there could be no seisin of an use, it was not subject either to curtesy or dower; this latter was found to be a serious inconvenience when almost all the land in the kingdom was conveyed to uses, and gave rise to the practice of lands being settled on the husband and wife before marriage, which was the origin of the modern jointure. An use at common law being but a mere right in equity, was in the nature of a chose in action, and consequently not transferable at law. When, however, the transfer was made by deed or writing, for valuable consideration, equity enforced the

contract.

Lord Bacon says, there is no case at common law where a person can take under a deed unless he be a "party to the words of the grant;" whereas an use might be declared to a person who was not a party to the deed by which the seisin was raised, because "a conveyance in use is nothing but a publication of the trust."

Uses, besides being raised upon the common-law conveyances, that is to say, feoffments, fines, and recoveries, by which the seisin was actually transferred, and which were therefore technically said to operate by transmutation of possession, were frequently raised upon two other instruments, the one called a bargain and sale, the other a covenant to stand seised. These instruments were mere contracts, which left the seisin in the bargainor or covenantor, and were therefore said to operate without transmutation of possession. The former was simply a contract for sale, and in respect of the consideration given, which must be valuable,namely, money, or money's worth, -was treated by the Court of Chancery as an agreement to stand seised of the use of the lands to the bargainee. The latter was a covenant entered into by a party desirous of making provision for his wife and family, to stand seised of the lands to their use; to raise the use on this covenant a valuable consideration was not necessary; the consideration of marriage and blood, that is to say, the obligation which reason and justice impose on a man to provide for his family, was sufficient, and was the only one by which, in a covenant to stand seised, the use could be raised. The consideration necessary to support a covenant to stand seised was said to be meritorious, in contra-distinction from that necessary to support a bargain and sale, which was said to be valuable.

It may not unreasonably be asked, what need there could be

for these two additional, and, so to speak, subsidiary means of raising an use, since the ordinary assurances by feoffment, &c. must have been fully adequate to meet every contingency to which these minor expedients could be applicable. The answer to this observation will probably be found in the fact, that the same considerations of convenience, and the desire to avoid the notoriety necessarily attached to feoffments, which had originally led to the invention of uses, suggested also this particular way of raising them.

Land would be frequently sold by parol, the purchaser being let into possession on payment of the money. Where writing was had recourse to, it would naturally be made in its form and solemnities to conform to those of similar instruments employed in transferring property where livery was not necessary, as, for instance, the bargain and sale of chattels. The covenant to stand seised originated partly out of the same considerations, and partly, also, in consequence of a fact already adverted to, that at common law a man could not make a provision for his wife by means of a direct conveyance to her1.

'Co. Litt.102. b.

CHAPTER III.

OF THE STATUTE OF USES.

The Statute of Uses, 30.-Estate of the feoffee to uses, 33.-Nature of the seisin conferred by the statute, 31.-Construction of the statute, ib.-Springing and shifting uses, 43.-Doctrine of the scintilla juris, 56.—Of the declaration of uses, 57. -Of resulting uses, 62.

The Statute of Uses.]-SUCH was the state of the law of real property at common law. The impracticable features of the feudal system had been considerably modified, and land made to a considerable extent subservient to the necessity of society by means of fiduciary conveyances enforced in the Court of Chancery. The system of uses, however, had never been in much favour either with the courts of common law or the legislature, and various efforts had been made to get rid of them altogether. The final effort was made by the 27th Hen. 8, c. 10, commonly called "the statute of uses." By this statute, after a long preamble, reciting the various inconveniences of uses, it is enacted, That, where any person or persons * stand or be seisedt, or at any time hereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, rever

"Any person or persons:" these words exclude aliens and corporations, and therefore it was determined, in an early case, that, where an alien and a natural-born subject were enfeoffed to uses, the moiety of the alien upon office found became vested in the crown. (The King v. Boys, Dy. 283).

This word applies properly only to freehold interests, of which a man is said to be " seised," and not to chattels real, or other personal estate, of which he is said to be "possessed;"

and therefore, if a term of years be assigned to A. to the use of B., the statute does not apply, and the legal estate remains in A., as was ruled by all the judges in the 22d Eliz., upon a question put to them by the Lord Chancellor. (Dy. 369 a). Neither does the statute apply to copyholds, they being in estimation of law estates at will only, and consequently the copyholder cannot be said to be "seised" of them.