called a future, a contingent, an executory use: when it arises from the act of some agent or person nominated in the deed, it is called a use arising from the execution of a power. In truth, both are future or contingent uses, till the act is done; and afterwards they are, by the operation of the statute, actual estates. But till done, they are in suspense, the one depending on the will of heaven, whether the event shall happen or not; the other on the will of man." 8. If a person conveys his estate by lease and release to trustees and their heirs, to the use of himself for life, remainder to his first and other sons in tail, and inserts a proviso in the release, that it shall be lawful for him, at any future time, to revoke these uses, and to declare new ones; and that immediately upon such revocation and new declaration, the trustees shall stand seised of the lands to the use of such persons as the settlor shall appoint; this is a power of revocation and appointment. As soon as it is executed, the uses originally limited cease, and a new use immediately arises to the person named in the appointment, for such estate as is given to him by it; and the statute transfers the legal estate to such appointee, who by that means acquires the actual seisin and possession. The nature of revocations and appointments to Tit. 32. c. 13. uses will be explained hereafter. the Statute 9. Lord Bacon says, the chief object of the statute Conveyances of uses was to destroy all those secret conveyances to derived from uses which had been so much complained of." The of Uses. principal inconvenience, which is radix malorum, is Bac. Read. the diverting from the grounds and principles of the common law, by inventing a mean to transfer lands and inheritances without any solemnity or act noFf VOL. I. 33. 1 Atk. 591. Read. 39. torious; so as the whole statute is to be expounded strongly towards the extinguishment of all conveyances, whereby the freehold or inheritance may pass, without any new confections of deeds, executions of estate, or entries." It is therefore somewhat singular that the statute, instead of having had that effect, has given rise to several new modes of transferring lands, unknown to the simplicity of the common law; and of a more secret nature than feoffments to uses: so that, notwithstanding the great caution with which this statute was made, it has not answered the intention of the Legislature. 10. Lord Bacon has, however, clearly proved, that the intention of the statute was only to destroy the estate of the feoffee to uses, by transferring it to the persons who were entitled to the use; and not to destroy the form of the conveyance to uses. 1. Be cause the words of the statute are, "Where any person is seised, or hereafter shall be seised to any use, &c." 2. In the same session in which this statute was made, it was enacted, that all bargains and sales to uses should be enrolled; which proved the intention of the Legislature, to leave the form of the conveyance, with the addition of a farther ceremony. 8. By the twelfth section of the statute, it was provided that the king should not take any primer seisin, or other feudal profits, on account of any estate which should be executed by means of the statute, till the 1st of May 1536. But that he should take the feudal profits for all uses which should become executed by the statute after that time. 11. Whatever might have been the intention of the Legislature in passing this statute, it is certain that it has given rise to several new sorts of convey. ances, which operate contrary to the rules of the common law for it being soon observed that there was nothing in the statute to prevent the raising of uses, but only a provision that when a use was raised, the possession of the land should be transferred to such use; it was only necessary to raise a use, and the legal seisin and estate, together with the actual possession, becaine immediately vested in the cestui ante, c. 3. $40. que use, without livery of seisin, entry, or attorn ment. 12. In consequence of this doctrine, it became customary to raise a use to the person to whom the lands were intended to be conveyed, and then the statute transferred the possession to the cestui qué use. This was done in two different ways; first, by a conveyance which only transferred a use, and which is said to operate without any transmutation of possession, because the alteration of the legal seisin is effected by the mere operation of the statute. There are two modes of conveyance which operate in this manner: a bargain and sale to uses, and a covenant to stand seised to uses; of which an account will be given in Title XXXII. Deed. 13. The second mode of conveying lands through the medium of uses, is effected in the following manner: the legal estate and possession is transferred by a feoffment, fine, or recovery, to some indifferent person, who stands in the place of the ancient feoffee to uses; a deed is then executed, reciting, that by such feoffment, fine, or recovery, the lands have been transferred to A. B., and declaring that such feoffment, fine, or recovery shall enure and operate, and that the feoffee, cognizee, or recoveror in such feoffment, fine, or recovery, shall be seised of such lands, to the use of a third person. Or else a deed is first executed, reciting that a fine or recovery is intended c. 9 & 10. c. 12. Whether the to be levied or suffered, or covenanting to levy a fine 14. In both these cases a use arises out of the seisin of the feoffee, cognizee, or recoveror, to the person to whom such use is declared, and the statute immediately transfers to that use, the legal estate and actual possession. 15. These latter assurances are said to operate by transmutation of possession, because the legal seisin and estate is first transferred by some common law conveyance or assurance. They are usually called deeds to lead or declare the uses of a fine or recovery, and will be treated of in Title XXXII. Deed. 16. As the statute of uses preceded the statute of tends to De- wills, the former has been said not to extend to devises to Uses. vises to uses. It is however observable, that the words of the statute of uses are,-"Where any person, &c. is seised to the use of any other person by reason Dyer, 127 a. Case, 1 Leon. 253. of any bargain, sale, &c. will, or otherwise." Now, though at the time when this statute was made, the word will could only apply to wills of lands then devisable by custom, yet when the statute of wills passed, the word will in the statute of uses became applicable to wills, or rather devises, of all the lands over which the testamentary power was given. In 17. In a case in 2 & 3 Phil. & Mary, it is said that devises of land in use have been common. E. Hartop's 23 Eliz. it was agreed by the Court of Wards, that a devise might be to the use of another; and Lord Coke is there reported to have been of opinion, that the son of a devisor takes by descent, when the cestui que use, to whom the land is devised, refuses the use; for the devisee cannot take it to his own use, because, if the use be void, the devise is also void. In the case of Broughton v. Langley, which will be stated in the next title, it was agreed that a devise may be Lutw. 823. to the use of another, and the use will be executed, if the intent of the devisor appear. In Gilbert's Uses, it is also said that a devise may be made to a use. 18. In the case of an immediate devise to uses,. as a devise to the use of A. for life, remainder to the use of B. in tail, it is admitted that the remainder cannot take effect by way of use; because there is no seisin to serve the use. But in the case of a devise to A. and his heirs, to the use of B. for life, remainder to the first and other sons of B. in tail, there is no reason why the seisin of A. should not be deemed sufficient to support the uses to the sons of B. pa. 281. v. 1. 427. 19. In opposition to this doctrine, a note to an opinion of the late Mr. Booth's has been published, Collect. Jur. in which it is said that the statute of uses does not operate on a devise to uses. This note is not annexed to the original opinion, which was in the possession of the late Mr. Hilliard, though it is said by Mr. Butler 1 Inst. 271 b. to be annexed to two copies of the opinion made n. 1. §3, 5. immediately under the eye of Mr. Booth, and delivered by him to the persons in whose custody they are, and also in a copy of it bequeathed by Mr. Booth to Mr. Holliday. Admitting the authenticity of this note, and the great authority to which Mr. Booth's opinions are justly entitled; yet, as it has been a universal practice for the two last centuries to devise lands to trustees and their heirs, to various uses, with several powers, in the same words as are used in declarations of uses on fines and recoveries; it would be extremely dangerous at this time to question the operation of the statute of uses in such cases. |