sions, remainders, or other hereditaments*, to the use, confidence, or trust of any other† person or persons, or of any body politic, by reason of any bargain, sale, feoffment, recovery, covenant, contract, agreement, will, or otherwise, by any manner or means whatsoever it be, that in every such case all and every such person and persons and bodies politic§, that have or hereafter shall have any such use, confidence, or trust||, in fee simple, fee tail, for term This description comprehends every species of vested estate in real property, in possession, reversion, or remainder; and therefore, not only corporeal hereditaments, but incorporeal, as advowsons, tithes, rents, &c. are within the statute; but, as contingent remainders or rents already granted to take effect upon a contingency, cannot be transferred at law during the suspense of the contingency, no use can therefore be limited upon the transfer of such contingent remainder or rent; because the statute transfers the legal possession in the estate to the use, and therefore a seisin, not legally vested, cannot serve an use. Lord Bacon (Tracts, 352) says, "The whole scope of the statute was to reinstate the common law, and never to intermeddle where the common law executed an estate. Therefore the common law ought to be expounded, that, where the party seised to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law;" as, if a man seised in fee simple covenants with another that he and his heirs will stand seised of the same lands to the use of himself and the heirs of his body, or to the use of himself for life, remainder over in fee: in this case, by the operation of the statute, the estate which he has at the common law is divested, and a new estate vested in himself, according to the limitation of the use. (Samme's Case, 13 Rep. 56; and see Bac. Tr. ib. for further illustrations). "Bargain, sale, feoffment, recovery, covenant, contract, agreement, will, or otherwise, by any manner or means whatsoever it be." Notwithstanding these extensive words, it has long been settled, that, to raise an use by the statute, there must be either an actual contract operating by transmutation of possession, or a contract or covenant operating as a bargain and sale, or covenant to stand seised, and that as to contracts and agreements which are merely referrible to intended contracts, uses under the statute cannot be raised upon them. (Hore v. Dix, 1 Sid. 25; Petfield v. Pearce, 2 Roll. Ab. 789). To raise uses there must be an actual contract. (Trevor v. Trevor, 1 P. W. 622). § Hence a corporation may be cestui que use, although they cannot be seised to an use. "Use, trust, and confidence." The word intent will also raise an use; as A. made a feoffment in fee sub conditione, ea intentione that his wife should have the land for her life, remainder to her younger son in fee. A. died, and also the feoffee, without having made any estate, and the heir of the feoffor entered as for a condition broken; but it was resolved 'Sect. 1. of life or for years, or otherwise, or any use, confidence, or trust in remainder or reversion, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders, and hereditaments, with their appurtenances, to all intents, constructions, and purposes in law, of and in such like estates as they had or shall have in use, trust, or confidence of or in the same; and that the estate, title, right, and possession that was in such person or persons that were or hereafter shall be seised of any lands, tenements, or hereditaments, to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner, form, and condition as they had before in or to the use, confidence, or trust that was in them1.” "And also, That, where divers and many personst be or hereafter shall happen to be jointly seised of and in any lands, tenements, rents, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any of them that be so jointly seised, that in every such case that those person or persons which have or hereafter shall have any such use, confidence, or trust in any such lands, tenements, rents, reversions, remainders, or hereditaments, shall from thenceforth have and be deemed and adjudged to have only to him or them that have or hereafter shall have any such use, confidence, or trust, such estate, possession, and seisin of and in the same lands, tenements, rents, reversions, remainders, and other that there was no condition, but an "In lawful estate, seisin, and pos- and an estate for years is abolished in all cases where the instrument creating the interest or estate operates under the statute, for the interest is made an estate by the statute, without previous entry; (Lutwich v. Mitton, Cro. Jac. 604); and hence the bargainee, under the common bargain and sale or lease for a year, takes a vested estate immediately, without actual entry. It may be doubted whether this case was not fully provided for by the first section. Lord Bacon says that this clause is rather an explanation than an addition. (Tracts, 340). hereditaments, in like nature, manner, form, condition, and course as he or they had before in the use, confidence, or trust in the same lands, tenements, or hereditaments*; saving and reserving to all and singular persons and bodies politic, their heirs and successors, other than those person or persons which be seised or hereafter shall be seised of any lands, tenements, or hereditaments, to any use, confidence, or trust, all such right, title or entry, interest, possession, rents, and action, as they or any of them had or might have had before the making of this act "1. "And also saving† to all and singular those persons, and to their heirs, which be or hereafter shall be seised to any use, all such former right, title, entry, interest, possession, rents, customs, services, and action, as they or any of them might have had to his or their own proper use in or to any manors, lands, tenements, rents, or hereditaments, whereof they be or hereafter shall be seised to any other use, as if this present act had never been had or made, any thing contained in this act to the contrary notwithstanding" 2. Estate of the feoffee to uses.]-By force of this statute the feoffee to uses has but a momentary seisin; the legal estate is instantly divested out of him, and vested in the cestui que use. The feoffee is a mere conduit pipe: he has no estate or interest whatsoever in the land; and consequently, as the estate does not remain in him for a single instant, it is subject neither to escheat or forfeiture, nor to dower or curtesy in his hands3; but the le This appears to be the proper commencement of the third section, since all the savings refer to both the preceding sections; and it is probably owing to a mistake of the transcribers that the third section does not commence here. In consequence of this clause, no term for years, or other interest whereof a person to whom lands are conveyed to uses is possessed in his right, will be merged or destroyed by such conveyance. Thus, where A. made a lease to O. and S., in secret confidence for the preferment of his wife, and afterwards made a feoffment to O. and others of the same lands, to 1 Sect. 2. Sect, S. ' Sneyd v. Sneyd, 1 Atk. 443. Tract on Us. 230. gal estate being immediately transferred to the cestui que trust, it becomes in his hands subject to these and all other legal incidents of property. Seisin conferred by the statute.]-The seisin conferred by the statute is a constructive or legal, not an actual seisin. "If," says Lord Coke, "a man bargain and sell land by deed indented and enrolled, the freehold in law* doth pass presently, and so 1Co. Litt. 267.b. when uses are raised upon a covenant upon good consideration"1. "The actual freehold," says Chief Baron Gilbert2, "is not in the bargainee till actual entry; for it is impossible an act of parliament should give any more than a civil seisin; it cannot give a natural one't. Hence the expression which occurs in the recital of the lease for a year, in the ordinary assurance by lease and release, "in the actual possession of" &c., is not correct, the bargain and sale or lease for a year giving the bargainee not the actual possession, but a vested estate and the right to the possession. It would be more accurate to say, "the said [releasee] now having a vested estate for a year in the hereditaments and premises hereby intended to be released by virtue of" &c. It would be still better, instead of referring to the lease for a year in the operative part of the deed, to recite it substantively, which might be done thus:-"Whereas, by an indenture of bargain and sale, bearing date the day before the day of the date of these presents, and made between &c., the hereditaments and premises hereby intended to be granted and released were, with the appurtenances, in consideration of &c., bargained and sold to the said [releasee], his executors, administrators, and assigns, for the term of one year, to commence from the day next before the day of the date thereof, to the intent that, by force of the statute of uses, the said [releasee] might have a vested estate therein, and be enabled to accept a release of the freehold and inheritance of the said hereditaments and premises." Construction of the Statute.]-By the operation of this statute, the jurisdiction of uses was transferred from the Court of Chancery to the courts of common law. Some of the more familiar points determined upon the construction of the statute See Co. Litt. 267. a., for the distinction between a freehold in deed and a freehold in law. this inconvenience would not have arisen, if the seisin to serve the uses had been conveyed to a third It is unnecessary to observe, that person. have been stated in the notes appended to it, and to these the reader's attention is requested, before going into the more important particulars of construction, which I shall now proceed to consider in the following order:-1. Uses executed by the statute; 2. The effect of a conveyance to A., to the use of A.; 3. Whether the same words are necessary for the limitation or modification of estates in deeds to uses, as in common law conveyances; 4. Whether springing or shifting uses should be allowed, in analogy to what had been done by the chancellors before the statute; 5. What assurances were created by the statute; and, 6. Out of what seisin contingent limitations of the use were to be supplied. After having considered under these heads the principal questions which have arisen upon the construction of the statute, it will then be proper to consider-by what means the uses may be declared; and finally, what happens when no uses are declared, or, in other words, the subject of resulting uses. 1. Uses executed by the statute.]—One of the points which the courts first determined upon the construction of the statute was, that there cannot be an use upon an use. Thus, upon 1 Tyrrell's ca., Dy. 155 a. a bargain and sale to A. to the use of B., it was held that the use was executed in A., and that the second use to B. was a mere trust1; the reason of this decision, according to Lord Bacon, being, because "the words of the statute are, where any person is seised of lands and tenements to the use of any other person,' which excludes uses, as they do not fall within either of these descriptions"2. So, on a feoffment to A. to 22 Bac. Tr. the use of B., to the use of or in trust for C., it was upon the same principle determined that the use was executed in B., and that C. took a mere trust estate. The result of the decisions was, that the Court of Chancery was obliged again to interfere, and thus recovered its jurisdiction over uses, in the name of trusts. In the construction of deeds to uses and upon trusts, the general principle of the court has been, to give the trustees the legal estate, to the extent necessary to enable them to execute the trusts reposed in them; and therefore, it was held, that where a person makes a feoffment in fee, to his own use during his life, and after his death that A. should take the profits; that this was an use executed in A.: but if he said, that, after his death, his feoffees should take the rents and profits, and deliver them |