parties, which is the direction of the use, according to the rule of the law. 37. So if a man seised of lands in fee simple, cove- Idem. nants with another, that he and his heirs will stand seised of the same land, to the use of himself and the heirs of his body; or to the use of himself for life, the remainder over in fee. In that case, by the operation of the statute, the estate which he hath at the common law, is divested, and a new estate vested in himself, according to the limitation of the use. 38. Lord Bacon says, if a person enfeoffs I. S. to Read. 64. the use of I. D. for life, remainder to the use of I. S. for life, remainder to the use of I. N. in fee, I. S. is in by the statute; because the law will not admit fractions of estates. So if a person enfeoffs I. S. to the use of himself and a stranger, they shall both be in by the statute, because they cannot take jointly, taking by several titles. Like law, if I enfeoff a bishop and his heirs, to the use of himself and his successors; he is in by the statute, in right of his see. Esse. 1 Rep. 126 a. 39. The third circumstance necessary to the exe- 3. A Use in cution of a use by this statute is, that there should be a use in esse, in possession, remainder, or reversion; and this use may either be created by an express declaration, or may result to the original owner of the infra, ch. 4. estate, or arise from an implication of law. fers the 40. When these three circumstances concur, the The Statute legal estate and possession of the lands, out of which then transthe use was created, is immediately taken from the actual Seisin. feoffee to uses, and vested in the cestui que use. And the seisin and possession thus transferred, is not a mere seisin and possession in law, but an actual seisin and Bac. Read. possession in fact; not a mere title to enter upon the 46. land, but an actual estate. Anon. Cro. 41. Lord Coke appears to have been of opinion, that by a conveyance to uses, executed by the statute, only a freehold in law passed. And others have said that the statute only transfers a civil seisin, it being impossible for an act of parliament to give an actual seisin; therefore that an entry is necessary to complete the seisin. It has however been found that the admission of this principle would be attended with dangerous consequences; it is therefore now held that the statute transfers the actual possession; a construction fully warranted by the words of the statute, which are, 66 every person having a use shall be in lawful seisin, estate, and possession, to all intents, constructions, and purposes, in the law." 42. The third section of the statute contains a saving "to all and singular those persons and to their heirs, which were or thereafter should 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, to his and their own proper use, in or to any manors, lands, tenements, rents, or hereditaments, whereof they were or thereafter should be seised to any other use, as if the said act had not been made." 43. 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 own right, will be merged by such conveyance. 44. A husband being seised in fee, made a lease to O. and S. in secret confidence, for the preferment of his wife. Afterwards he made a feoffment to O. and others, of the same lands, to other uses. It was decreed in the Court of Wards, by the advice of Wray, Anderson, and Manwood, that the term was not extinguished by the feoffment, by reason of the pro viso; and because O. had the lease to his own use, it was not extinguished by the feoffment, which he took to the use of another. Fermor. Cro. Ja. 643. 1 Mod. 107. 45. A. demised lands to B. for 99 years; after- Ferrers v. wards A. by bargain and sale enrolled, and fine, conveyed the same lands to B. and others and their heirs, to the use of them and their heirs, to the intent that a common recovery should be had and suffered against them, with voucher of the lessor, to the use of a stranger; all which was done accordingly. The question was, whether the term for years was merged. Resolved, that the term still subsisted; for although it was merged, by the union of the estates, till the recovery was suffered, yet when that was done, the uses thereof being guided by the bargain and sale, it was the same as if there had been no conveyance; it being within the equity and intent of the saving in the third section of the statute of uses: for the intention of that statute was not to destroy prior estates, but to preseve them. It was also agreed by the whole Court, that if a fine or feoffment had been levied or made to the lessee for years, his term would not have been thereby extinguished. An objection was made that the bargain and sale, and fine, were to the use of the lessee for years, otherwise he could not have been tenant to the freehold; therefore the saving in the statute of uses did not extend to this case; but it was answered and resolved, for the former reasons, that the term was saved by the equity of the statute. 46. The saving in the statute of uses extends to cases, where the inheritance is conveyed by lease and release. Fountain, 47. Cook let to Fountain for 99 years; two years Cook v. after Cook conveyed the inheritance by lease and Bac. Ab. Tit. release to Fountain and another, to the use of Cook Lease, R. and the heirs of his body, with divers remainders over. The question was, whether by this conveyance the lease for 99 years was merged and destroyed, in all or in part. First it was agreed, that if such conveyance to uses had been by fine or feoffment, it would not have been destroyed, but would have been preserved by the saving in the statute of uses. So likewise it was admitted, that if there had been no lease for a year, but the release had been immediate to the lessee for 99 years, to such uses, in this case also the lease for 99 years had been preserved by force of that statute: but here being a lease for a year precedent, it was argued that this was to the use of the lessee, and then by acceptance thereof, he admitted the lessor's power to make such lease; and by consequence before the release to the other uses came to take place; then the release after could not revive it it was also said, that though this were all one conveyance, yet it differed from a feoffment, for it would not purge a disseisin, nor make a discontinuance that if, before the release, the lessee granted a rent-charge or made a lease for half a year, and then a release was made to him and his heirs, to such uses, yet he who had the inheritance would have no remedy to avoid these charges but in Chancery. On the other side it was argued that this was no merger of the 99 years term, or if it were, yet for no more than a moiety: for the reason of merger and extinguishment was not, as had been argued, the party's admittance of the lessor's power to make a lease; but the merger was effected by the accession of the immediate reversion to the particular estate; therefore a new lease by the lessor to his lessee, was not a merger or surrender of the first term, if there was any interposing or intermediate term; yet in that case the lessee admitted the lessor's power to make the lease presently, as much as in the other: then if the union and accession of the two estates were the cause of the merger, the quantum of the thing granted would be the measure of that merger; by consequence the first lease here would be extinguished, but for a moiety of the lands. Secondly, that it was not extinguished for any part, for the term was saved within the letter, or at least within the equity of the statute 27 Hen. VIII. c. 10. § 3. ; for the intent of the saving therein was to preserve the balance between the cestui que use and his feoffees, according to the rule of equity, by which they were governed before. Now suppose that Fountain had a lease for 99 years before this statute, and that Cook had desired him to accept a feoffment to his use; without doubt the Chancery would not have compelled him to assign, till the 99 years term expired: and the same right seemed now to be preserved by the saving; for the words were general : "All that shall be seised to any use," not all that shall be seised by feoffment or fine: so that the seisin to use was the only thing the statute regarded, not by what sort of conveyance: that lease and release was become a common conveyance; and the lease Vide Tit.32. being expressly said to be, to enable the lessee to aceept a release to other uses, should not be construed to any other intent, or to be to his own use, otherwise than to enable him to accept such release: then if it should be admitted that the lease for 99 years were extinguished by the lease for a year, yet by the release it was revived; for being but one conveyance, it was within the equity of the statute: the case of Ferrers v. Fermor was stronger, and yet it ante, § 45. was resolved there, that though the bargain and sale c. 11. |