253 BOOK III. PART III. OF CONVEYANCES DERIVING THEIR OPERA- CHAP. I. OF A COVENANT TO STAND SEISED TO USES. HAVING finished the consideration of deeds operating COVENANT by the rules of the common law, we now proceed to those which derive their effects from the statute of uses. We have seen, that by the old common law, all conveyances of real property, required the ceremony of livery of seisin, or of attornment, to perfect them; but when, through the medium of uses, the jurisprudence of equity was let in upon the dispositions of real property, the Court of Chancery, regarding the nature upon which contracts for the alienation of property are grounded, gave an equitable effect to two species of grants, (or contracts considered as equivalent thereto), which, without the ceremonies of livery of seisin, or attornment, had no operation at all in law. The considerations, which gave rise to this benign construction, were those which are commonly distinguished by the respective epithets of good, and of valuable; the former being the consideration of blood, or TO STAND SEISED. TO STAND SEISED. COVENANT of marriage; the latter of a pecuniary price: both which considerations, from their interesting and obligatory natures, were considered by the Court of Chancery as raising an use in the subject of the contract, or intended grant, for the benefit of the person in whom such considerations existed, or from whom it moved; and though the legal estate in the subject of such contracts, or intended grants, was not thereby altered or transferred for want of the ceremonies before-mentioned; yet the grantor, or contractor, was, upon the ground of such considerations, considered in equity as standing seised, or legally entitled to the things which were the subjects of such grants, in trust for the covenantee or intended grantee2; and the party intended to be benefited, having thus acquired the use, was put at once into corporeal possession of the land, by the statute of uses, operating upon his estate. Contracts of the former of these kinds, that is, where blood or marriage is the consideration, were denominated COVENANTS TO STAND SEISED TO USES, because they amounted either to an express covenant, or an implied engagement to stand seised for the benefit, that is, for the use and advantage of the grantee, or covenantee: And those of the latter kind, namely, where a pecuniary consideration was the motive, were called Bargains and Sales. Of these two species of assurances we are now to treat; and first, of a COVENANT TO STAND SEISED. A covenant to stand seised may be defined to be an instrument in writing, by which a man, seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same to the use of his child, wife, or kinsman; after which covenant he becomes seised to the use of such child, &c. and therefore comes within the statute of uses; and being seised to the use of another, the 2 Blac. Com. 337; Plow. 301, 303. a See Plow.301,b; 303,a; Fearne's Posth. Works, 16. b Bac. Uses, 151; 2 Blac. Com. 337. с TO STAND statute transfers the possession and legal estate; and COVENANT hence it is, like a bargain and sale, made a mean of transferring the estate to the covenantee. This mode of conveyance being confined to those particular ends, and not calculated for general purposes, is now seldom had recourse to as a conveyance of land; but as the doctrines relating to it are not unfrequently applicable to the construction of marriage articles and family settlements, it will be proper to give it a short consideration. In doing which, I shall notice: 1. Of what there may be a covenant to stand seised: 2. The consideration necessary to support it: 3. Of the form of a covenant to stand seised: 4. Of the operation and construction of such a covenant. naut to stand 1. With respect to the things of which a man may cove- Of what there nant to stand seised, it is to be observed, that as such may be covecovenant must always be intended to be to the use of seised. another, it follows, that it can operate upon such hereditaments only as are capable of being conveyed by way of use: these have been enumerated in a former chapter. It is further requisite, to a covenant to stand seised, that the lands should be in the possession or seisin of the covenantor, for it will operate on such lands only of which the covenantor is actually seised or entitled at the time, either in possession or remainder, for it is out of the seisin of the covenantor that the use arises. Hence, if a father covenant to stand seised of all the lands which he then has, or which he shall afterwards purchase to the use of his son, &c. no after-purchased lands will pass, or be affected by the covenant, but only those of which he was seised at the time of the covenant. So also, if one of two joint-tenants covenant to stand seised to uses of the moiety of his companion, in case he should survive him, no use will arise See of these, ante, vol. iii. c. 10. s. 3. p. 524. f Yelverton v. Yelverton, Cro. Eliz. 401; 2 Rol. Abr. • Wiseman's ca. 2 Co. 15,a. 790. 1 COVENANT although he should survive; because, at the time, he had no title to the moiety of his co-tenants. TO STAND Consideration to support covenant to stand seised. Consideration of blood. 2. Of the consideration necessary to support a covenant to stand seised. The only good consideration of a covenant to stand seised is that of blood or of marriage, for this being a secret conveyance, it requires a meritorious consideration to support it. Consideration of blood is, in other words, a consideration or motive arising from the natural affection which a man is presumed to have for his near a-kin, and the wish and moral duty he has to benefit or provide for them. Hence therefore, if a man, in consideration of the natural love and affection he has for his son, covenants to stand seised to his use, this will be a good consideration; and the statute will execute the use and transfer the possession to such son; and this consideration of affection for a son, will extend to the wife of such son, for whom therefore a covenant with the son to stand seised, will be goodi. And a consideration of natural affection expressed to one child will, by construction of law, be extended to other children. If therefore a man, having issue three sons, covenants in consideration of natural affection to the eldest son, to stand seised of certain land to the use of himself for life, and afterwards to his eldest son, and the heirs male of his body; and for default of such issue, to the use of his second son, and the heirs male of his body; and for default of such issue, to the use of the third son, &c. this is a good consideration to raise the use to his younger sons; for though the consideration of natural affection be limited only to the eldest, yet as this is equal in respect to all the sons, the law will supply it without expression; indeed, if nothing had been expressed, it Barton's case, 2 Rol. h Gilb. Law of Uses, 47; iSharington v. Strotton, Plow. 300; Bould v. Winston, 2 Rol. Ab. 786; Bedell's case, 7 Co. 40. would have been a good consideration by implication of COVENANT lawk.. The consideration of natural affection is likewise goodto raise an use to children unborn. Thus, the consideration of affection to the heirs male of the covenantor which he may beget on the body of A. his wife, is a good consideration to raise an use to such heirs of his body when born'. So, if a man covenant to stand seised to the use of himself and the heirs male of his body, this shall raise a good estate-tail; for though all the estate-tail is in himself, yet this is for the benefit of the heir male when he comes into esse. And a man may modify a fee that continues in him, although he cannot take de novo a fee which is already in him". But affection for a bastard is not such consideration as will raise an use; for in law he is not supposed to be of the blood of his father, but is considered as a mere stranger, for whom no one is presumed to have a natural affection". So likewise, if a man covenants, in consideration of blood and also of the marriage of his bastard daughter, to stand seised to the use of such daughter, this is not a good consideration to raise an use, for in law she is not considered his daughter, but filia populi° (1). * 2 Rol. Abr. 782, 783, between Bond and Edmonds, per curiam. Sharington & al. v. Strotton, Plow. Rep. 300. m Gilb. Law of Uses, 209. "Perrot's case, 2 Rol. Abr. 785; Worsley's case, Dyer, 375, pl. 16; Gilb. Law of Uses, 48, 206. 2 Rol. Abr. 785, between Frampton and Gerard. (1) But, if a man covenants, in consideration of natural love and affection, and the marriage of his bastard daughter, to levy a fine, and that the conusee shall stand seised to the use of the bastard daughter, though this be not a sufficient consideration to raise an use upon a covenant, yet as it is expressive of the intent of the party, it therefore shall serve as a sufficient declaration of an use upon the fine, which needs no consideration. Gilb. Law of Uses, 207. And see Co. Lit. 123, a, n. (8). VOL. IV. TO STAND |