seised to a

ment as a

sale to a use

-And so this covenant to stand seised to uses, is at A covenant this day, since the said statute, a conveyance of to stand land; and with this difference from a bargain and use needeth sale, in that this needeth no inrollment, as a bargain not inroland sale doth; nor needeth it to be in writing in- bargain and dented, as bargain and sale must: and if the party to whose use he agreeth to stand seised of the land, be not wife, or child, cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance; for although the law alloweth such weighty considerations of marriage and blood raise uses, yet doth it not admit such trifling considerations, as of acquaintance, schooling, services, or the like.

ment, or re

limit the

But where a man maketh an estate of his land to Upon a others, by fine, feoffment, or recovery, he may then fine, feoffappoint the use to whom he listeth, without respect covery, a of marriage, kindred, or other things; for in that man may case his own will and declaration guideth the equity of the estate. It is not so when he maketh no listeth," estate, but agreeth to stand seised, nor when he without hath taken any thing, as in the cases of bargain and tion of sale, and covenant, to stand seised to uses.

whom he

considera

blood or

money.

and sale, or

6. The last of the six conveyances is a will in Otherwise, writing; which course of conveyance was first or- in a bargain dained by a statute made 32 H. VIII. before which covenaut. statute no man might give land by will, except it of the conwere in a borough town, where there was an espe- land by cial custom that men might give their lands by will; as in London, and many other places.

veyance of

will.

thought to

mon law.

The not giving of land by will was thought to be The not disa defect at common law, that men in wars, or sud- posing of lands by denly falling sick, had no power to dispose of their will, was lands, except they could make a feoffment, or levy be a defect a fine, or suffer a recovery; which lack of time at the comwould not permit: and for men to do it by these means, when they could not undo it again, was hard; besides, even to the last hour of death, men's minds might alter upon further proofs of their children or kindred, or increase of children or debt, or defect of servants or friends.

The course

For which cause, it was reason that the law that invent- should permit him to reserve to the last instant the

ed before

32 H. 8.

the stat. of disposing of his lands, and to give him means to dispose of it; which seeing it did not fitly serve, men used this devise:

first gave

power to devise

lands by

convey.

ance of lands to

feoffees in trust, to

They conveyed their full estates of their lands, in ' will, was a their good health, to friends in trust, properly called feoffees in trust; and then they would by their wills declare how their friends should dispose of their lands; and if those friends would not perform it, the court of chancery was to compel them by reason of trust; sons as they should de- and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body.

clare in their will.

The inconveniencies of putting land into

use.

By this course of putting lands into use there were many inconveniences, as this use, which grew first for a reasonable cause, namely, to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as namely, a man that had cause to sue for his land, knew not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease; for these rights and duties were given by law from him that was owner of the land, and none other; which was now the feoffee of trust; and so the old owner, which we call the feoffer, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee; and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be in

ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it.

of convey

grees of

creased,

Which frauds by degrees of time, as they increas- The frauds ed, were remedied by divers statutes: as namely, by a ances to statute of 1 H. VI. and 4 H. VIII. it was appointed use, by dethat the action may be tried against him which time, as taketh the profits, which was then cestuy que use; by they ina statute made 1 R. III. leases and estates made by were remecestuy que use are made good, and estates by him died by the acknowledged. 4 H. VII. the heir of cestuy que use is to be in ward; 16 H. VIII. the lord is to have relief upon the death of any cestuy que use.

statutes.

taking

away all

eth the law

Which frauds nevertheless multiplying daily, in 27 H. 8. the end, 27 H. VIII. the parliament, purposing to take away all those uses, and reducing the law to uses, reducthe ancient form of conveying of lands by public to the anlivery of seisin, fine, and recovery, did ordain, where lands were put in trust or use, there the session and estate should be presently carried of the friends in trust, and settled and invested on fine and him that had the uses, for such term and time as he recovery. had the use.

that cient form pos- ances of out land, by fe

of convey

offment,

stat. of

power to

lands by

will.

By this statute of 27 H. VIII. the power of dis- In what posing land by will is clearly taken away amongst manner the those frauds; whereupon 32 H. VIII. another sta- 32 H. 8. tute was made, to give men power to give lands by giveth will in this sort. First, it must be by will in writing, dispose of Secondly, he must be seised of an estate in feesimple; for tenant for another man's life, or tenant in tail, cannot give land by will; by that statute 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the If a man be land he holdeth in socage tenure, he may give it by seised of will, except he hold any piece of land in capite by and socage, knight's service of the king; and then laying all devise but together, he can give but two parts by will: for the two parts of third part of the whole, as well in socage as in capite, must descend to the heir, to answer wardship, livery, The third and primer seisin to the crown. And so if he hold lands by knight's service of a the heir to subject, he can devise of the land but two parts, wardship,

capite lands

he cannot

the whole.

part must descend to

answer

livery and and the third the lord by wardship, and the heir by seisin to the descent is to hold.

crown.

A convey

vise of

to the wife

And if a man that hath three acres of land holden

ance by de- in capite by knight's service, do make a jointure to his capite lands wife of one, and convey another to any of his children, for her join or to friends, to take the profits, and to pay his debts, or legacies, or daughters' portions, then the third acre or any part thereof he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship.

ture, etc.

void for a

third part, by 32 H. VIII.

veyance by

ed in the

to such uses

But a con- Yet a man having three acres as before, may conact execut- vey all to his wife, or children, by conveyance in his life-time of life-time, as by feoffment, fine, recovery, bargain the party of and sale, or covenant to stand seised to uses, and such lands disinherit the heir. But if the heir be within age is not void: when his father dieth, the king or other lord shall have that heir in ward, and shall have one of the three within age, acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of third to be it, but it shall go according to the conveyance made Entailed by the father.

but if the

heir be

he shall

have one

in ward.

lands part

of the thirds.

The king cannot intermeddle

nor lord

if a full

third part

be left to descend to the heir.

The manner

when the

It hath been debated how the thirds shall be set forth. For it is the use, that all lands which the father leaveth to descend to the heir, being fee-simple, or in tail, must be part of the thirds: and if it be a full third, then the king, nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest.

This supply is to be taken thus; if it be the of making king's ward, then by a commission out of the court supply, of wards, whereupon a jury by oath must set forth Part of the so much as shall make up the thirds, except the heir is not a officers of the court of wards can otherwise agree full third. with the parties. If there be no wardship due to the king, then the other lord is to have this supply by a commission out of the chancery, and jury thereupon.

Thestatutes

But in all those cases, the statutes do give power give power to him that maketh the will, to set forth and aptator to set point of himself which lands shall go for thirds, and

to the tes

neither king nor lord can refuse it. And if it be out the third not enough, yet they must take that in part, and himself, etc. only have a supply in manner as before is mentioned

to deceive

By gift, the property of goods may be passed by a deed of word or writing; but if there be a general deed of gift gift of goods made of all his goods, this is suspicious to be done his crediupon fraud, to deceive the creditors.

tors is void against

gift them, but

good

against the

administra

And if a man who is in debt make a deed of of all his goods to protect the taking of them in gain execution for his debt, this deed of gift is void, as executors, against those to whom he stood indebted; but as tors, or against himself, his own executors or administrators, vendee of or any man to whom afterwards he shall sell or convey himself. them, it is good.

II. By sale.

the party

fide and

is a private

Property in goods by sale. By sale, any man may What is a convey his own goods to another; and although he sale bona may fear execution for debts, yet he may sell them what not, out-right for money at any time before the execution where there served; so that there be no reservation of trust be- reservation tween them, that, repaying the money, he shall have the goods again; for that trust, in such case, doth parties. prove plainly a fraud, to prevent the creditors from taking the goods in execution.

of trust be

tween the