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England, a disposition to avoid giving notoriety to the conveyance of lands, from the general custom perhaps that prevails there of making them the subjects of family settlement and arrangement. It is to this that the opposition to a general registry act is, probably, to be *ascribed. It was to this disposition that the form of (*131] conveyance by lease and release owed its origin. Secret conveyances could not be effected by bargain and sale, for these, if the estate conveyed was a freehold, were required to be enrolled. Nor could it be by covenant to stand seised where the consideration was a valuable one. Lord Norris, accordingly, being desirous of conveying some of his lands in a secret manner, employed Sir Francis Moore, a serjeant at law, at one time a reader at the Temple, and known as the author of Moore's Reports, and who lived between 1558 and 1621, to devise some plan to effect this purpose. He adopted a hint from the exception made in the statute in respect to enrolling bargains and sales, where the estate was less than a freehold. Acting upon this, he conveyed the estate by bargain and sale in the usual form, to the bargainee for one year, which took effect by force of the statute of uses, without the necessity of any enrolment, so as to make the lease good without any entry made or formal possession delivered. The bargainor, lessor, or grantor (for he acted all these parts), was then to execute and deliver an ordinary deed of release at common law, to the bargainee or lessee, in fee, and this did not require any livery of seisin to give it effect, since the grantee or releasee was, theoretically, already in actual possession of the premises. The bargain and sale for the year was usually by deed, though by the statute of frauds it was only required to be in writing. And this deed was usually dated the day before the deed of release, and acknowledged the receipt of some nominal sum of money, but was executed the same day with the release. This form was continued up to 1841, when, by statute, it might be effectual if made by a single deed.2
39. This mode of conveyance has been in use, at times, in some of the States in this country, but is now rarely if ever employed.?
40. In respect to the formality with which uses should be declared
1 Wms. Real Prop. 151, 153; 2 Prest. Conv. 219; Tud. Lead. Cas. 265; Wallace, Reporters, 86.
Wms. Real Prop. 153, Rawle's note ; Lewis v. Beall, 4 Harr. & M'H. 488.
in order to take effect, it may be remarked, that before [*132] *the statute of frauds, it might have been done by parol.
But by that statute, all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, except such as arise or result by implication of law, are required to be manifested and proved by some writing, signed by the party, or by his last will and testament. And where the conveyance is by transmutation of possession, it is not necessary that this declaration should be by the same instrument by which the conveyance is made. It will be sufficient if done by that or a distinct instrument. But instruments which do not operate by transmutation of possession, such as bargain and sale, covenant to stand seized, and the execution of an appointment under a power, are in themselves the declaration of the uses to which the seisin is executed by the statute. There are no formal words required to be employed in declaring a use. It is only necessary that the declaration should be certain, and, especially, as to the persons in whose favor it is intended to be made, the estates they are to take, and the lands in regard to which the declaration is made.2
41. The doctrine of uses resulting to the grantor of an estate, by implication, before the statute, as heretofore mentioned, is in force in certain cases, by the construction which has been given to the statute. But it only applies where there is no consideration to raise the use in favor of any other person. Consequently a úse can result only upon a grant of a fee-simple estate, for the duties which attach to the estate of a tenant in tail, for life, or for years, constitute, in the eye of the law, a consideration for the conveyance so far as to negative the idea of a use resulting to him who made it, for the want of a consideration, even though none was actually paid.3
42. Among the cases where the law would raise a result[*133] ing *use, is that of one conveying his land in fee in a com
mon-law form, without declaring the use, and where no consideration is acknowledged. The use in such case would be executed in the grantor himself. So if, in the case above supposed, the use as to a part only of the estate is declared, it would result as to the residue to the grantor, as where a conveyance is made by a man to the use of his heirs, and no use is declared of the same during his life, an estate for life arises in his own favor by implication. So if, besides the use to his heirs, he had declared an immediate use to one for years, so much of the use as would be left between the expiration of the term for years and the grantor's death, when the use to his heirs would be executed, would result to him; and thus would be created, in effect, a present use for years, a use in remainder for life to the grantor, and a use to his heirs in remainder after his decease. So if the limitation be by A for a valuable consideration, to B in fee, to the use of B for life, without any other declaration, the use in fee after B’s death would result to the grantor.? So if a feoffment were made to the use of A B for life, with a remainder to the use of the right heirs of CD, the reversion of the use remains in the feoffor until the heirs of C D shall have been ascertained. And if a feoffment be to the use of sach person as the feoffor shall appoint by his will, or to the use of himself and wife after their marriage, the use results to the feoffor until the appointment is made in the one case, or the marriage is had in the other. So where a husband and wife conveyed the estate of the wife by fine without any declaration of uses, or a man conveyed to trustees to uses which by their terms were not to be executed till after his death, it was held in the one case, that the use resulted to the wife, and in *the other, to the grantor during his life. But if [*134] there be a limitation of uses to one and his heirs during the life of the grantor, and then a limitation to the use of the heirs of
i Stat. 29 Car. II. c. 3, $$ 7,8; Sand. Uses, 229; Shep. Touch. 519; Tud. Lead. Cas, 266.
2 Tud. Lead. Cas. 267; Shep. Touch. 520; Sand. Uses, 229.
8 Castle v. Dod, Cro. Jac. 200; Perkins, $ 533-535; 1 Spence, Eq. Jur. 452; 2 Rolle, Abr. 781, F.; 1 Cruise, Dig. 376; Tud. Lead. Cas. 258; 1 Prest. Est. 192.
1 Armstrong v. Wolsey, 2 Wils. 19; Beckwith’s case, 2 Rep. 58; Sand. Uses, 100. A deed of bargain and sale in which the consideration is left blank would be inoperative. Moore v. Bickham, 4 Binn. I.
2 1 Prest. Est. 191 ; Wilkins v. Perrat, F. Moore, 876; Woodliff v. Drary, Cro. Eliz. 439; Pibus v. Mitford, 1 Ventr. 372; Tipping v. Cozzens, 1 Ld. Raym. 33 ; Tud. Lead. Cas. 258; 1 Cruise, Dig. 370; Sand. Uses, 103, 104; Fearne, Cont. Rem. 48; Co. Lit. 23 a.
3 Bac. Law Tracts, 350.
the grantor's body, there would be no resulting use to him, and his issue would take as purchasers.)
43. But a consideration, though merely a nominal one, as five shillings, for instance, if actually paid, or even, as was held in one case of lease and release, a rent reserved of a pepper-corn, would be sufficient to make a good conveyance and to prevent the use from resulting. And the same effect, it would seem, would follow from an express acknowledgment of the receipt of a consideration in a deed, for“ an averment shall not be allowed or taken against a deed that there was no consideration given, when there is an express consideration upon the deed." *
44. And although there be no consideration expressed, if the use is expressly declared, and it covers the entire estate, there will be no resulting use.
45. When the estate in the cestui que use is created by [*135] a *mode of conveyance which operates without transmuta
tion of possession, as by a covenant to stand seised, for instance, and a use results to the covenantor until the use in the covenantee, &c. takes effect, it is called a use by implication, in such bargainor or covenantor. As where A covenanted to stand seised
* NOTE. — Though a conveyance would be good at law if made for a valuable consideration to the extent of a farthing only. And after the statute, chancery could not have impeached its effect as a conveyance in transferring the legal estate, yet if it were not made for a substantial consideration, chancery would hold the bargainee to be a trustee of the bargainor, and compel him to convey the estate to the bargainor; thus giving the practical effect of a resulting use by means of a decree in equity. Gilbert, Uses, Sugd. ed. Introd. Isi.; 1 Spence, Eq. Jur. 467.
11 Prest. Est. 194; Co. Lit. 22 b, note 135; Sand. Uses, 132; Fearne, Cont. Rem. 51; Tippin v. Cosin, Carth. 272, s. c. 4 Mod. 380; Shelley's case, 1 Rep. 95; Sand. Uses, 132. See post, p. *135, for the distinction between a limitation over to the heirs of the body of the grantor, and his heirs generally.
? Tud. Lead. Cas. 258; Sand. Uses, 104 ; Barker v. Keat, 2 Mod. 249 ; Gilbert, Uses, Sugd. ed. 230, n.; Mooro v. Bickham, 4 Bion. 1.
8 3 Wood, Cases, 285; Fisher v. Smith, F. Moore, 569; Wilt v. Franklin, 1 Binn. 518, per Tilghman, C, J.; id. 519, per Yeates, J. It is necessary to stato a valuable consideration to raise a use by bargain and sale, but it iş not necessary to state the amount. Okison v. Patterson, 1 Watts & S. 395.
Sprague v. Woods, 4 Watts & S. 192; Tippin v. Coson, 4 Mod. 380 ; 1 Prest. Est. 193; Graves v. Graves, 9 Foster, 129.
to the use of his heirs male, begotten or to be begotten on the body of his wife, it was held, that he had a use for life by implication, for the obvious reason that no one could take it while he lived. And, upon the same principle, if one bargain and sell, or covenant. to stand seised of, an estate, where no use is declared or none arises for want of a consideration, the use would remain in the bargainor or covenantor, or, in other words, the deed would be inoperative, as there would be no use in another for which the law would take away the seisin and possession which are in the bargainor or covenantor to unite them with a new use.2
46. Uses can only result to the original owner of the estate, out of which they are raised. And when they do result or arise by implication, they are of the same character with the estate which the owner had in the land. Thus if two joint-tenants so create an estate that the use results to them, it is to them as joint-tenants; or if one of two grantors have a reversion, and another the life estate on which the reversion depends, and a use results, it is to them in the same character and quality. Or if A and B join in conveying B's land, and a use results, it is to B alone.3
47. If a use is limited, in terms, after another use, to the same effect as it would have resulted in favor of the grantor, the grantor is in of his old use, and such limitation is void. Thus if the limitation were to the use of one and his heirs, during the life of the grantor, to the use of the grantor's heirs generally, after his death his heirs would not take by purchase as remainder-men, but by descent as reversioners. And the *distinction between [*136] this and a former proposition, where the limitation over was to the use of the heirs of the grantor's body, will be obvious upon reflection, since, in the latter case, the heirs take a different estate from that of their ancestors, and take a contingent remainder. And the same principle is applied to cases of devises to heirs at law.
i Pibus r. Mitford, 1 Ventr. 372; Fearne, Cont. Rem. 41; Co. Lit. 23 a ; 1 Cruise, Dig. 374.
* 1 Cruise, Dig. 374; Sand. Uses, 100.
• Shelley's case, i Rep. 95; Co. Lit. 22 b; Else v. Osborn, 1 P. Wms. 386 ; Fenwick v. Mitforth, F. Moore, 285; Sand. Uses, 133; Watk. Conv., White's ed. 1838, 172, n.; Co. Lit. 22 b, n. 134 ; id. n. 135; Tippin v. Cosin, Carth. 273 ; Le Countee de Bedford's case, F. Moore, 720.