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basis on which modern uses have been built up, and the matter is of little or no practical importance.?
28. Different terms are applied to describe future uses, depending upon the manner in which they are to arise. If a use is to arise by the happening of some contingent event which is provided for by the
deed declaring it, which event may be called the act of God, [*126] it takes the name of a future, a contingent, or *an executory
But when it arises from the act of some agent or person named in the deed creating it, it is called a use arising from the execution of a power.
Both are in effect however, future or contingent uses, till the act is done.2
29. In all future or executory usee, there is, the instant they come in esse, a sufficient degree of seisin supposed to be left in the feoffees, grantees, &c. to knit itself to and support those uses, so that it may be truly said, the feoffees or grantees, stand seised to those uses, and then, by the force of the statute, the cestui que use is put into the actual possession. It is wholly immaterial how or by what means the future use comes in esse. The estate thus acquired by the cestui que use has the qualities and is subject to all the legal incidents of a legal estate, such as escheat, dower, curtesy, and the like, while that of the feoffee to use, being instantly taken out of him as soon as created, is not subject to any of these legal incidents.4
30. But if a future contingent use is limited as a •remainder, the same rule applies as to its being necessary that it should vest during the particular estate, or immediately on its determination, as was applied, at common law, to remainders in the conveyance of lands, and as will be explained in a future chapter.5
31. Enough has been stated to show that, though one of the professed objects of the statute was to restore simplicity and notoriety in
1 Chudleigh's case, 1 Rep. 129; Tud. Lead. Cas. 260; Hayes, Real Est. 166; Gil. bert, Uses, Sugd. ed. 296, note ; Sand. Uses, 110; 1 Sugd. Pow. 41. Instead of the seisin going back to the feoffees to serve the second use, the true doctrine seems to be, that it acquired by statute a capacity of transmission to the use, wherever it may be, when it left the feoffee.
2 Shep. Touch. Prest. ed. 529, n.; Weale v. Lower, Pollexf. 65; Gilbert, Uses, Sugd. ed. 159.
8 Shep. Touch. Prest: ed. 529, n.
6 Chudleigh's case, 1 Rep. 130, 135; Tud. Lead. Cas. 261; Gilbert, Uses, Sugd. ed. 165; Adams v. Savage, 2 Salk. 680; Fearne, Cont. Rem. 284.
the transfer.of estates, it might, under the construction given by the
32. But, as prior to the statute of frauds in the time of Charles the Second, it did not require a written instrument to convey corporeal hereditaments, except as provided in the matter of deeds of bargain and sale, the ingenuity of conveyancers was not slow in devising various modes of conveying lands which, while conforming to the letter of the statute of frauds, made the transfer of these a secret act between the parties. By some of these modes the grantor parted with the possession of his land by force and effect of the common law, in the act of conveying it. In others he did not. The former were said to be conveyances by the transmutation of possession; the latter, conveyances without such transmutation. In the former
, the grantor transferred the seisin, by feoffment at common law, to an intermediate feoffee, while he named the cestui que use to whom the use was given, and the statute passed the seisin of the grantor through such feoffee to the cestui que use, thus completing a title in him by the union of the seisin and the use. In the latter, the grantor gave or raised the use in favor of the cestui without parting with the seisin to any intermediate person, the seisin that was in himself serving the use, and being taken from him by the statute and united with the use in the cestui que use. The ultimate effect was the same in the one mode as in the other. But in the former, if the grantor wished to create an estate in fee in the
que use, and
Wms. Real Prop. 150; Bac. Law Tracts, 344; 1 Cruise, Dig. 365; Gilbert, Uses,
Sagd. ed. 502.
* Browne, Stat. Frauds, 4; Wms. Real Prop. 151.
cestui que use, he must give a fee to the feoffee to use. A limitation to A to the use of B and his heirs, would only create a life estate in B, as though the use was one for life, unless the feoffee and cestui
que use are the same person. [*128] *33. Of the modes of conveyance by the transmutation
of the possession above referred to, one was by feoffment to use, as where A enfeoffed B to the use of C. The statute directly and at once took the seisin from B and united it with the use in C, thereby completing the title in him. Another mode, spoken of in the statute, was by fine and recovery, described in a former part of this work, and where either of these was accompanied with a declaration of uses in a proper form, it constituted a conveyance to uses. " But as these have been abolished by statute in England, and such declarations, it is believed, were never in use as modes of conveyance in this country to any considerable extent, in the sense of deeds to • lead or declare the uses of fines and the like, they are purposely omitted here.
34. The modes of conveying estates without the transmutation of possession, were more numerous than those of the class above mentioned. One of these, bargain and sale, has already been mentioned, as well as the fact that the statute required the deed thereof to be enrolled, if the estate conveyed was a freehold. This mode of conveyance consisted of a contract or bargain by the owner of land, in consideration of money or its equivalent paid, to sell the land to the bargainee, whereupon a use arose in favor of the latter, and the statute, at once, took from the bargainor the seisin which was in him, and transferred it to the bargainee, who already had the use, and thereby made his title complete. And although by the statute of
13 Prest. Abst. 123.
2 Watk. Conv. Wbite's ed. 1838, 240 ; Tud. Lead. Cas. 265 ; Wms. Real Prop. 150 ; id. 165 ; 4 Kent, Com. 294; Thatcher v. Omans, 3 Pick. 521.
Ante, Vol. I. p. *70. 4 2 Prest. Conv. 480 ; 1 Cruise, Dig. 367; Sand. Uses, 219.
6 Fines might be levied in New York, by way of quieting titles, until 1830, when the same were abolished by statute. A case of this kind is found in 17 N. Y. 162, McGregor v. Comstock, where the form of proceeding is described. But this does not seem to answer to the conveyance of lands by means of a fine, which is above referred to.
6 Tud. Lead. Cas. 265; Mestaer v. Gillespie, 11 Ves. 625, by Eldon, Ch. It was held in Maryland that, although an existing incorporeal hereditament, like a right of
enrolments such indenture must be enrolled in order to have the full effect of a conveyance, such a bargain and sale made, in requisite form, without the enrolment, would be treated by chancery as evidence of an agreement to convey, which might be enforced against the bargainor.
35. Another of these modes was by what was called a *covenant to stand seised, where the person seised of land, [*129] being induced to part with the estate to his wife or some person to whom he was akin by blood, in consideration of such relationship, covenanted to stand seised of the same to the use of such person, either in present or in future. By such covenant he raised the use at the time when, by its terms, the covenant was to take effect, and as soon as the use was raised, it became executed by the statute out of the seisin of the covenantor, by taking that and executing it with the use in the cestui que use. The covenant 'must of course be by deed in order to constitute it a covenant, and the usual term employed in creating it is covenant,” though any other words may be adopted which are tantamount, as bargain and sale, if applied where the consideration of the deed is blood or marriage. And although it may be usual to make the covenant with the one who is to have the benefit of the use, this does not seem to be necessary, as in Bedell's case, for instance, the owner of the land, together with his wife, covenanted with his second and third sons, that he the grantor and his heirs would stand seised of the tenements to the use of himself for life, and after his decease to the use of his wife, and after her death to the use of the two sons in moieties, in tail. And it was held, that the use thereby raised to the wife was a good one.3 A husband cannot, however, covenant with his wife.4
36. The rule in England seems to have been very stringent in
way, could be conveyed by deed of bargain and sale, it could not be created by a deed
1 Waik. Cony. White's ed. 1838, 333, 337 ; Tud. Lead. Cas. 265.
• Brewer v. Hardy, 22 Pick. 376; Barrett v. French, 1 Conn. 354 ; Bedell's Case, 7 Rep. 40; Co. Lit. 112 a.
* 3 Wood. Conv. 286; 2 Rolle, Abr. 788; Co. Lit. 112 a.
requiring a bargain and sale to be for a valuable consideration, and a conveyance by covenant to stand seised to be for the consideration of marriage or consanguinity. Nor will they allow a conveyance to have the effect of a bargain and sale, where the consideration is not a valuable one, nor of a covenant to stand seised where the con
sideration is not that of marriage or consanguinity. And if [*130] these respective considerations were *wanting, the bargain
and sales or covenant, as the case might be, would be inoperative. But a more liberal rule seems to prevail in the United States, as to giving effect to a covenant to stand seised where the consideration stated in the deed is a pecuniary one. And courts have often construed deeds as covenants to stand seised, which were insufficient, in form, to operate otherwise as a conveyance of land, where the intention of the parties could be ascertained from the deed. But this will be further considered hereafter.?
37. It may be stated, in order to prevent any misapprehension as to the effect of a bargain or covenant in respect to land, that if the covenant be an executory one to convey or settle lands to certain uses, it would not operate as a conveyance. To have that effect, it must be an actual present bargain and sale, or covenant to stand seised.3
38. Another mode of conveyance without actual transmutation of possession of the land, derived its force and validity partly from the statute of uses and partly from the common law, and was known as Lease and Release. It was in use for more than two centuries, and, until the recent act 8 and 9 Vict. 106, was the most usual form of conveying lands in England, ånd was at last superseded by that act making a simple deed of grant sufficient to convey corporeal as well as incorporeal hereditaments. There seems to have always prevailed in
1 4 Kent, Com. 493; Den v. Hanks, 5 Ired. 30; Sand. Uses, 81; Jackson v. Sebring, 16 Johns. 315; 1 Cruise, Dig. 107; Smith v: Risley, Cro. Car. 529; 3 Wood, Conv. 285.
2 i Greenl. Cruise, Dig. 107, note ; Welsh v. Foste 12 Mass. 93, 96. And one reason why the American courts are less stringent in discriminating between these modes of conveyance, doubtless is, that there is no distinction here as there is in England as to recording the deeds, no enrolment being required there of a covenant to stand seised. See Rawle’s note to Wms. Real Prop. 153 ; 4 Kent, Com. 494.
3 Tud. Lead. Cas. 260; 1 Sand. Uses, 114; Edwards v. Freeman, 2 P. Wms. 435; Trevor v. Trevor, 1 P. Wms. 622; Blitheman v. Blitheman, Cro. Eliz. 280.
4 Wms. Real Prop. 153; Gilbert, Uses, Sugd. ed. 224.