bargains and sells his land for money, which raises a use by implication to -the bargainee, the limitation of a farther use to another person is repugnant, and therefore void. (a) And therefore on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and [336] his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B., he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down through a hundred uses upon uses, till finally executed in the a 1 And. 37. 136. heirs carried the whole fee to them, and therefore the estate for life, as well as the estates in remainder, were merely trust estates in equity; that part of the trust was to sell the whole, or a sufficient part of the estate for the payment of debts and legacies, which would carry a fee by construction, though the word heirs were omitted in the devise, as in 1 Eq. Cas. Abr. 184. for the trustees must have a fee in the whole estate to enable them to sell, because, it being uncertain what they may sell, no purchaser could otherwise be safe: that the only doubt he had, was on the case of Lord Say and Seal v. Lady Jones, before Lord King, and affirmed in the house of lords, as to that point: but, on examination, that case differed in a material part; and, taking together all the clauses of that will, it only amounted to a devise to trustees and their heirs during another's life, upon which a legal remainder might be properly limited. 1 Vez. 143. S. C. 2 Atk. 246. 570. And it was taken for granted in 2 Vez. 646. that a devise to trustees and their heirs in trust, to pay the rents and profits to another, vested the legal estate in the trustees. For in general the distinction is, that where the limitation to trustees and their heirs is in trust to receive the rents and profits and pay them over to A. for life, &c. this use to A. is not executed by the statute, but the legal estate is vested in the trustees to enable them to perform the will; but where the limitation is to trustees and their heirs in trust, to permit and suffer A. to receive the rents and profits for his life, &c. the use is executed in A. unless it be necessary the use should be executed in the trustees, to enable them to perform the trust, as in the case of Harton v. Harton, above mentioned. So in Taunt. 109. the devise being to trustees and their heirs in trust, to pay unto, or permit and suffer, the testator's niece to have, receive, and take, the rents and profits for her life, it was held that the use was executed in the niece, because the words to permit, &c. came last; and in a will the last words shall prevail. See 1 Eq. Ca. Abr. 383. As where lands were devised to trustees and their heirs to the intent and purpose to permit A. to receive the rents and profits of his life, and after that the trustees should stand seised to the use of the heirs of the body of A. with a proviso, that A. with the consent of the trustees, might make a jointure on his wife, it was held that this was an use executed in A., and not a trust estate, for it would have been a plain trust at common law and what was a trust of a freehold of inheritance at common law is executed by the statute which mentions the words trust as well as use; and the case in 2Vent. 312. adjudged to the contrary upon this point, was denied to be law. 1 Lutw. 814. 823. S. C. 2 Ld. Raym. 873. 2 Salk. 679. And the same distinction was taken by lord Kenyon, in the case of Doe, on the demise of Wolley, v. Pickard, Stafford summer assizes, 1797, and by Mr. justice Lawrence, in Jones v. Prosser, Worcester spring assizes, 1798. The statute of uses is not held to extend to copyhold estates, for it is against the nature of their tenure, that any person should be introduced into the estate without the consent of the lord, Gilb. Ten. 170. nor to leases for years which are actually in existence at the time of their being assigned to the use; as where A. possessed of a lease for years, assigns it to B., to the use of C., all the estate is in B.; and C. takes only a trust or equitable estate. But if A., seised in fee, makes a feoffment to the use of B. for a term of years, the term is served out of the seisin of the feoffee and is executed by the statute. It is the same as if he bargains and sells the estate of which he is seised in fee for a term of years. Dy. 369. a., and in the margin, 2 Inst. 671. Nor does the statute of uses extend to cases where the party seised to the use and the cestuy que use is the same person, except there be a direct impossibility for the use to take effect at common law. Bac. Law Tracts, 352. 2 ed. 4 M. & S. 178. In that case, a release was made to A. and C. and their heirs, habendum to them and their heirs and assigns as tenants in common, and not as joint-tenants, to the use of them, their heirs, and assigns, held that A. and C. took as tenants in common. Cro. Car. 230. Jenkins v. Young, Ibid. 244. And see Cruise's Dig. title, Use, S. 31. et seq. But where the purposes of a trust may be answered, by giving the trustees a less estate than a fee, no greater estate shall arise to them by implication, but the uses in remainder limited ou such lesser estate so given to them shall be executed by the statute. Doe d. White v. Simpson, 5 East, 162. 1 Smith, 383. And a devise in fee to trustees, without any specific limitation to cestuy que trust, the latter takes a beneficial interest in fee. 8 T. R. 597. And an express devise in fee to trustees may be cut down to an estate for life, upon an implication of intent. 7 T. R. 433. So where the trustees are to receive and pay rents to a married woman, upon her death the legal estate is executed in the person who was to take in remainder. 7 T. R. 654. Chitty. VOL. I. 81 61 last cestuy que use. Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whercof the termor is not seised, but only possessed; (b) and therefore, if a term of one thousand years be limited to A., to the use of (or in trust for) B., the statute does not exccute this use, but leaves it as at common law. (c) And lastly (by more modern resolutions), where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust. (d)" Of the two more ancient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B. was never intended by the parties to have any beneficial interest; and, in the second, the cestry que use of the term was expressly driven into the court of chancery to seek his remedy and therefore that court determined, that though these were not uses which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. (e) To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts; and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance. (ƒ) [337] However, the courts of equity, in the exercise of this new juris diction, have wisely avoided in a great degree those mischiefs which made uses intolerable. The statute of frauds, 29 Car. II. c. 3., having required that every declaration, assignment, or grant of any trust in lands or hereditaments (except such as arise from implication or construction of law), shall be made in writing signed by the party, or by his written will: the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchasor without notice; (g) which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is b Bacon law of Uses, 335. Jenk. 244. c Poph. 76. Dyer, 369. [2. T. R. 448.] (61) It is the practice to introduce only the names of the trustee and the cestuy que trust; the estate being conveyed to A. and his heirs, to the use of A. and his heirs, in trust for B. and his heirs; and thus this important statute has been effectually repealed by the repetition of half-s dozen words. Mr. Christian's note. (62) I should be inclined to think that the case as expressed by the learned judge would be construed an use executed by the statute. In the authority referred to in 1 Eq. Ca. Abr. 383 the trustees were first to pay legacies and annuities, and then to pay over the surplus to a mar ried woman for her separate use. To prevent a trust from being executed by the statute in cases of this kind, it is necessary that the trustees should have some control and discretion in the application of the profits of the estate, as to make repairs, or to provide for the maintenance of the cestuy que trust. 1 Bro. 75. 2 T. R. 444. Where there is no such special circumstance in the grant, it appears to be equivalent to a direction to the trustees to permit the cestuy que trust to take the profits of the estate, which is fully established to be an use executed. Í Eq. Ca. Ab 583. Mr. Christian's note. And see ante 335, note. liable to debts, to executions on judgments, statutes, and recognizances (by the express provision of the statute of frauds), 3 to forfeiture, to leases, and other incumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents, (h) than from any well-grounded principle." It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs: (i) because the trust could never be intended for his benefit. But let us now return to the statute of uses. The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. But this now has given way to 12. A twelfth species of conveyance, called a convenant to stand [338] seised to uses: 65 by which a man, seised of lands, covenants in con h 1 Chanc. Rep. 254. 2 P. Wms. 640. i Hard. 494. Burgess and Wheat, Hil. 32 Geo. II. in Canc. (63) But it is held, that if a man be cestuy que trust of a term of years, it is not assets within this statute, for it extends only to a trust of land in fee. 2 Vern. 248. 8 East, 486. 4 B. & A. 684. And see further, 2 Saund. 11. a. n. 17. and note m, by Patteson. (64) It has been decided, that when the legal and equitable estates meet in the same person, the trust or equitable estate is merged in the legal estate; as if a wife should have the legal estate and the husband the equitable; and if they have an only child, to whom these estates descend, and who dies intestate without issue, the two estates having united, the descent will follow the legal estate, and the estate will go to an heir on the part of the mother: and thus, which appears strange, the beneficial interest will pass out of one family into another, between whom there is no connexion by blood. Goodright v. Wells, Doug. 771. Before the statute of uses there was neither dower nor tenancy by the curtesy of an use, but since the statute, the husband has curtesy of a trust estate, though it seems strange that the wife should, out of a similar estate, be deprived of dower. See ante, p. 132. n. But this distinction is accounted for by Ld. Redesdale, in 2 Sch. & Lif. 388. and see 2 Saund. 26. note q. Christian. (65) See in general, 2 Saund. Rep. 42. c. 96. b. et seq. & id. index, tit. Covenants. On the authority of Roe v. Tranman, it was held in 4 Taunt. 20. that a covenant to stand seised is good, though the use be a freehold to arise at a future time. The only considerations which will support a covenant to stand seised are blood and marriage; therefore if a person covenant to stand seised to the use of a relation and a stranger, it is said that the whole use will vest in the relation. 2 Roll. Abr. 784. pl. 2 & 4. So where a man covenants to stand seised to the use of himself for life, with remainders over to his relations, and with a power for the tenant for life to make leases, this power is void, for the lessees would be strangers to the consideration of blood. Cro. Jac. 181. Cross v. Faustenaitch. So if a man should covenant to stand seised to the use of himself for life, with remainders to the use of trustees (who are not his relations), for the purpose of preserving contingent remainders, with remainder to his first and other sons in tail, &c. no use would vest in the trustees, because the consideration does not extend to them. This is a principal reason why covenants to stand seised are fallen into disuse. 2 Saunders, U. & T. 82. This and the next species of conveyance, viz. bargain and sale, are to be distinguished by the nature of the instrument, and not by the words merely; for the words "covenant to stand seised to uses" are not essential in the one, nor" bargain and sell" in the other. For if a man for natu ral love and affection, bargain and sell his lands to the use of his wife or child, it is a covenant to stand seised to uses, and without enrolment vests the estate in the wife or child: so if for a pecuniary consideration he covenants to stand seised to the use of a stranger, if this deed be enrolled within six months, it is a good and valid bargain and sale under the statute, and the estate vests in the purchaser. 7 Co. 40. b. 2 Inst. 672. 1 Leon. 25. 1 Mod. 175. 2 Lev. 10. A bargain and sale without enrolment may be construed and act as a grant or surrender, which shews that the words "bargain and sell" have no precise legal import. 1 Prest. Conv. 38. How a covenant to stand seised is to be pleaded, see 3 Salk. 306. 2 Ves. Sen. 253. 2 Saund. 97. b. c. Lutw. 1207. Carth. 307. 3 Lev. 370. 2 Chitty on Pleading, 4th ed. 576. Chitty sideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, (k) without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage. 13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale of lands; 6 which is a kind of real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such a bargain a trustee for, or seised to the use of, the bargainee: and then the sta tute of uses completes the purchase; (1) or, as it hath been well expressed, (m) the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall, or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious, till about six years before; (n) which also occasioned them to be overlooked in framing the statute of uses and therefore such bar[339] gains and sales are not directed to be enrolled. But how impossible it is to foresee, and provide against, all the consequences of innovations! This omission has given rise to 14. A fourteenth species of conveyance, viz. by lease and release; first invented by serjeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I.) have formerly doubted its validity. (o) It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Nor this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore, being thus in possession, is capable of receiving a release of the freehold and rever 69 k Bacon, Use of the law, 151. 1 Bacon, Use of the law, 150. n See pag. 142. (66) See 2 Prest. on Conv. 212. 1 Saund. 251. n. (2). How to be pleaded, 2 Saund. 12. a. note 20. 2 Chitty on P. 4th ed. 576. When defective, is allowed to operate as a covenant to stand seised if the deed state the relationship. 2 Saund. 96. b. 97. (67) See in general, 2 Preston on Conveyancing, 207 to 489.; 2 Saund. index, Lease and Release. (68) Because the statute 27 Hen. VIII. c. 16. does not require the enrolment of a bargain and sale for years. See preceding page. (69) It must be borne in mind that in this and former instances, where it is said the statute annexes the possession, upon the vesting of the use, an actual occupancy or possession of the land is not meant. The effect of the statute is to complete the title of the bargainee, or to give him a vested interest by which his ownership in the estate is as fully confirmed, as it would have been according to the common law, by livery and seisin. Mr Preston in his Conveyancing, vol. 2. page 211. has discussed and explained this subject with his usual ability. See also Cruise Dig, in sion; which, we have seen before, (p) must be made to a tenant in possession: and, accordingly, the next day, a release is granted to him. (9) This is held to supply the place of livery of seisin and so a conveyance by lease and release is said to amount to a feoffment. (r) : 15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and 16. Deeds of revocation of uses, hinted at in a former page, (s) and founded in a previous power, reserved at the raising of the uses, (1) to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation. (u) And this may suffice for a specimen of conveyances founded upon the statute of uses: and will finish our observations upon such deeds as serve to transfer real property. Before we conclude, it will not be improper to subjoin a few re- [340] marks upon such deeds as are used not to convey, but to charge or incumber, lands, and to discharge them again: of which nature are, obligations or bonds, recognizances, and defeazances upon them both. 70 1. An obligation or bond, is a deed (v) whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the personal property of the obligor will be more properly considered hereafter. If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional; for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void for the whole is an unlawful contract, and the obligee shall take no advantage from such a P pag. 324. s pag. 335. q See Appendix, N° II. § 1. 2. r Co. Litt. 270 Cro. Jac, 601. u Co. Litt. 237. dex, Lease and Release. See also the opinion of Mr. Booth in Cases and Opinions, 2 vol. 143 to 149. tit. Reversions, edit. 1791. As to the effect of a conveyance by lease and release of a reversion expectant on a term, and the mode of pleading such a conveyance, see Co. Litt. 270. a. n. 3. 4 Cruise, 199. and 2 Chitty on Pleading, 4th edit. 578. note e. Archbold. (70) See post 465. (71) If in a bond the obligor binds himself, without adding his heirs, executors, and administrators, the executors and administrators are bound, but not the heir, Shep. Touch. 369. for the law will not imply the obligation upon the heir. Co. Litt. 209. a. A bond does not seem properly to be called an incumbrance upon land; for it does not follow the land like a recognizance and a judgment; and even if the heir at law alienes the land, the obligee in the bond, by which the heir is bound, can have his remedy only against the person of the heir to the amount of the value of the land; and he cannot follow it when it is in the possession of a bona fide purchaser. Bull N. P. 175. Christian. |