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4. Enough has been shown in what has herein been said, to justify the remark contained in an early part of the chapter, of the importance of the doctrine of uses as applied to modern. conveyances. The language of Mr. Preston upon the subject already cited in part is, that " within the whole scope of that learning which is more particularly to be studied by the conveyancer, there is none more important to be known than that which concerns the doctrine of uses, for there are many things which may be done through the medium of a conveyance to uses, or under the statute of uses, without a conveyance, which cannot be accomplished by a conveyance merely and simply at common law, and consequently there are many occasions in which it is absolutely necessary to resort to the learning of uses, in framing a conveyance, or for giving it effect.” 1
5. If this were the proper connection, reference might be made to the extent to which the doctrine of springing and shifting uses is applied in carrying out modern family settlements, and the same might be done in respect to powers. But as these subjects seem to come in, more properly, after the doctrine of remainders has been explained, nothing further will be said of them at this time. The subject of trusts, too, though they were derived originally from uses, is obviously one which requires to be treated by itself, and the few observations which follow are designed as a brief and simple explanation of the manner in which some of the principles above stated are applied, in carrying out the intention of a grantor to part with his entire estate *to the grantee, through the forms of [*142] conveyances in general use in this country.
6. Thus to prevent any inference of a resulting use in the grantor, it is usual to acknowledge a consideration received on the part of the grantor, and though, as already stated, it is competent to show by parol that a larger or smaller sum than that mentioned in the deed has been actually paid, it is not competent for the grantor, in the absence of fraud, to negative the receipt of such consideration as will give full effect to the deed as a conveyance. But if it is necessary in order to give effect to a deed, the grantee may show aliunde, that the relation of kindred or marriage existed between the grantor and grantee, although not mentioned in the deed, and although the consideration recited was a pecuniary one.' So, for the same reason, it is usual to declare a use in the deed in favor of the grantee and his heirs, although, where the grantee named is both feoffee and cestui que use, the conveyance takes effect under and by virtue of the common law, and derives no validity as such from the statute of uses.?
1 1 Prest. Abst. 311. See Cornish, Uses, 22, 23.
2 3 Wood, Conv. 285 ; Gilbert, Uses, 51; 1 Greenl. Ev. $ 26, note 2; Sand. Uses, 47.
USES AS APPLIED IN THE SEVERAL STATES.
1. General application of uses in conveyances.
15. Uses in Tennessee.
18. Forms of deeds in the several States.
1. It would be difficult to define, with any satisfactory degree of accuracy, the extent to which the doctrine of uses has been applied in the systems of conveyance adopted by the several States of this country. In few, if any of these, are there any prescribed forms of deeds which it is necessary to follow in executing convey
1 Gale v. Colburn, 18 Pick. 297 ; Brewer v. Hardy, 22 Pick. 370; Bryan v. Bradley, 16 Conn. 474. Soc contra, 2 Sand. Uses, 48.
2 i Prest. Abst. 101; Wms. Real Prop. 132, 154; Belden v. Seymour, 8 Conn.
*ances of lands. In a large proportion of them, the form [*143) is that of bargain and sale, though other forms which clearly indicate the intention of the grantor to pass the estate, are held sufficient. In several of these States the forms of English conveyances of feoffment, bargain and sale, lease and release, and covenant to stand seised, are recognized by statute as modes in use, while the forms of attesting, acknowledging, and recording the same, are prescribed by the same statute. In some of the States, the statute of uses has been adopted and recognized as a part of the common law. In others, it has never been so recognized. In others still, it has been expressly determined not to form a part of the common law, while the statute of uses in some of the States is supplied by statutory enactments, which contain, in a declaratory form, substantially the modifications which had been introduced into the common-law system of conveyances, by means of uses, answering to springing and shifting uses, powers, and the like. With such a variety of forms and systems of conveyances, it would be inexpedient to attempt to define, with any considerable degree of precision, how far uses are in force in each of these States. The most that will be attempted will be to state, generally, under what circumstances and in what States they have been recognized, referring to the work of Mr. Thornton on Conveyances for authority, where other references are not specially made.
2. It may be stated, generally, that the cases in which resort has been had to the doctrine of uses, have been where the parties, in undertaking to convey lands, have failed to follow the form in use in the State, or have undertaken, by a form borrowed from the common law, to create an interest like a freehold in futuro, for instance, which could not be done by construing the conveyance as one deriving its validity from the common law, and resort has been had to the doctrine of uses in order to effectuate the intention of the parties.?
3. In Massachusetts, the form of deeds in use is said to be a free translation of the old charter of feoffment, omitting *the reddendum and adding a covenant of warranty, while [*144] it is held, that deeds of release and quitclaim are effectual
1 For the extent to which uses are applied in the United States, seo Hill on Trustees, Whart. ed. p. 230, note.
* 2 Smith, Lead. Cas. 5th Am. ed. 453.
to pass whatever estate the grantor could convey by bargain and sale. If the deed in use is examined, it will be found to give, grant, bargain, sell, and convey, stating a consideration, and limiting the granted premises to the grantee and his heirs, to his and their use. Yet the only effect of this is to exclude the idea of a resulting use, for such a conveyance as has been heretofore shown, takes effect at common law, and not by the statute of uses, since the grantee or feoffee and cestui que use are one and the same person. But the cases have been numerous where substantially the same forms of deeds have been held to be conveyances under the statute of uses, most generally, if the relationship of the parties is shown, as covenants to stand seised. Thus a deed recorded without being acknowl. edged, where the consideration was "natural affection for a son, and five shillings, was held to be a covenant to stand seised. On the other hand, where the deed was one of bargain and sale to A to the use of B, which, by a strict application of the English law of uses, would be a trust for B, it was held, that the deed might be construed a feoffment to A to the use of B, which would be executed in B.? In the same case the court held that the statute of uses formed a part of the common law of the State. In another case, a father conveyed to a son in consideration of $400, to have and to hold, &c., after the death of the grantor, with covenants of seisin and warranty. The court held the conveyance to be a covenant to stand seised to the use of the grantor during his life, and after his death to the use of the grantee, &c. In another case, where the deed was in form a release and quitclaim to one who was not in possession, it was held, that the deed might be construed a bargain and sale or other lawful conveyance by which the estate might pass, “ the recording of the
deed being by law equivalent to an actual livery and [*145] seisin.” 4 This latter * circumstance was wanting in the first
•case above cited, since the recording of a deed without its being acknowledged has no validity as a record. So where the deed was by a grandfather to his grandson in consideration of his living with the grantor during life, to come into possession when twenty-one
i Cox v. Edwards, 14 Mass. 492.
years old, it was held to be a covenant to stand seised, as it could not be a bargain and sale, since it purported to convey a freehold in futuro. So where a father conveyed to a daughter, reserving the use of his estate during his life and that of his wife, it was held a covenant to stand seised to the use of the grantor for life, remainder to the use of the wife, though not named as grantee in the deed, remainder to the use of the daughter, in whom the use was finally executed as a remainder, and not as a springing use. In some of the cases cited, the consideration mentioned was a pecuniary one, though in fact a relationship of some sort was proved to exist between the granitor and grantee. And how far in this country the line is preserved between bargain and sale and covenant to stand seised in respect to consideration, will be the subject of future attention.
4. In Maine there are the same forms and rules substantially as in Massachusetts, as to applying uses, in conveyances by deed. Thus a grant to a corporation not yet in esse, for pious uses, was held to give the grantor the right of possession until the grantees came into being, and then the estate and right of possession passed to them.3 So where a husband and wife made a deed, reserving the improvement of one-half of the premises for the lives of the husband and his wife, as there was no such relationship between the parties as to apply the doctrine of covenant to stand seised, the law of this State requiring the consideration for such a conveyance to be a good one, it was held, that as to one-half of the estate the conveyance *might be construed to be a feoffment to the use of the [*146] grantor, and then to the use of his wife; and as to the other half, that the use was executed in the grantee. These cases will justify the language of the courts in several cases where they have stated, in effect, that a conveyance of land, by deed, may be considered any species of conveyance necessary to effect the intent of the parties to the deed, and not repugnant to the terms of it."
Parker v. Nichols, 7 Pick. 111; Gale v. Coburn, 18 Pick. 397. See Marden v. Chase, 32 Me. 329.
? Brewer v. Hardy, 22 Pick. 376; see Thatcher v. Omans, 3 Pick. 522, a deed by husband and wife of wife's land to another, to the use of husband and wife, made an effectual conveyance to them both. * Shapleigh v. Pilsbury, 1 Me. 271.
Emery v. Chase, 5 Me. 232. 5 Marshall v. Fisk, 6 Mass. 24, 32; Emery v. Chase, 5 Me. 232; Foster v. Dennison, 9 Ohio, 121. VOL. II.