« SebelumnyaLanjutkan »
5. In Connecticut, the statute of uses is held to form a part of the common law, and has often been applied in giving effect to what would, otherwise, have been an informal and inoperative deed. Thus, in one case, the grant was to A in trust for B during her life, and after her death to her children and their heirs, and it was held not to be a trust in which the legal estate was in A, but a use executed in B for life, and her children in remainder in fee. So in a case similar to that above cited of Brewer v. Hardy, the court held the deed to be a covenant to stand seised to the grantor's own use during life, and then to the use of the grantee. In another case the
? deed for a nominal consideration of ten dollars, conveyed the estate to a daughter, reserving the use and improvement to the grantor's wife so long as she remained the grantor's widow, he then being sick and about to die. It was held, that it might either be a feoffment to uses, or a covenant to stand seised to the use of the wife, and after to the use of the daughter. It may be remarked that, in that State, as in Massachusetts, the record of a deed is equivalent to an actual livery of seisin. In Georgia it was held, that on a conveyance to A in trust to do certain things and then to convey the land to B, the moment the preliminary acts were performed, the use at once was executed in B without the necessity of any conveyance from A. “ Chancery,” say the court, “ dispenses with useless things, and leaves the use to be executed by the statute of uses, uniting the legal title and the use together."5 In Indiana, a deed to B“ to be held in trust for the wife or children of W. H.” was held to execute and vest the legal estate in the person for whose use the trustee takes.
6. In North Carolina, the court recognized the existence and application of the doctrine of uses, in a case where the deed was held inoperative as being neither a conveyance at common law,
nor under the statute of uses. It was to A for life, and [*147] at *her death, to her two children and their heirs, with cove
nants of warranty against all claims but those of the grantor during his natural life. No consideration was expressed or proved. There was no relationship between the parties, nor was there any
1 Bacon v. Taylor, Kirby, 368.
Barrett v. French, i Conn. 354. 6 Adams v. Guerard, 29 Geo. 676. 6 Linville v. Golding, 11 Ind. 374.
use declared in the deed. It was held not to be a feoffment, as no seisin or possession was delivered, nor a bargain and sale for want of a valuable consideration, nor a covenant to stand seised for the like want of a requisite consideration, and therefore void altogether.
7. In Virginia, a case occurred of a deed from a brother to a sister, in which the words of conveyance were “ give, grant, and deliver,” with covenant of warranty. No seisin was indorsed, and it was contended that it was a deed of feoffment which was not good without livery of seisin. But the court held it to be a good covenant to stand seised, "the use being forth with executed in possession by force of the statute of uses. ”?? By statute in that State, the effect of a conveyance by a bargainor to a bargainee, is to transfer the possession to the use as perfectly as if the bargainee had been enfeoffed with livery of seisin of the land conveyed.,
8. In Maryland, bargain and sale has nearly superseded all other modes of conveyance, and the rules applicable to such deeds seem to be the same as in England. The use is executed in the bargainee by the statute, and a limitation to the use of any one but the bargainee converts it into a trust, the bargainee having the legal estate, and the person named as cestui que use, becoming thereby the cestui que trust. It is moreover held, that to constitute a conveyance a bargain and sale, the consideration must be a pecuniary one, and where it was recited to be land, the conveyance could not operate as a bargain and sale, though a general recital of divers valuable considerations or the like would be sufficient.5 If the consideration *be blood, marriage, or natural affection, the deed [*148] must operate as a covenant to stand seised and not as a bargain and sale. But a deed in the form of a bargain and sale, containing the words“ give and grant,” might operate as a feoffment, if accompanied with a livery of seisin, although, for the reasons above stated, it would not pass the estate as a bargain and sale. And now, the enrolment of the deed is equivalent to livery of seisin, the ancient form of livery having become obsolete. Deeds of bar
1 Den v. Hanks, 5 Ired. 30; 8. P. Jackson v. Sebring, 16 Johns. 515; Jackson v. Cadwell, i Cow. 622.
Rowletts v. Daniel, 4 Miinf. 473. 3 Tabb v. Baird, 3 Call, 475; Duval v. Bibb, id. 362. • Marthews v. Waru, 10 Gill & J. 443.
5 But see 2 Sand. Uses, 47. 6 Cheney v. Watkins, 1 Harr. & J. 527. : Matthews v. Ward, 10 Gill & J. 443.
gain and sale are sufficient to pass any freehold in possession, reversion, or remainder, unless the bargainor be out of actual or constructive possession of the same. A case moreover is reported, which was decided in 1750, where it was held, that one who had a seisin in law, but never an actual seisin, might convey by lease and release, there being no one in adverse possession at the time.?
9. In New Hampshire, it was declared by statute in what mode lands might be conveyed, and the form prescribed required the attestation of two witnesses to the deed. But it was held, that this did not exclude other modes known to the common law; and, accordingly, where a father conveyed to a son, who at the same time, by deed not witnessed, leased and quitclaimed the estate to the father during his life, the court held, that the only way in which these two instruments could be carried into effect was under the statute of uses; that this statute was brought with the original colonists as a part of their common law, and was in force here, and that the deed without witnesses, as an instrument of conveyance, was a covenant on the part of the son to stand seised to the use of the father, the statute executing the use in the father, who was thereby entitled to possession of the premises. This, and bargain and sale as a mode of conveyance, were recognized by the court as valid forms in that
State. [*149] *10. In South Carolina, an early statute, 1731, provided
that no deed of feoffment should be impeached for want of enrolment thereof. And a statute of 1791, provides for a form of conveyance, but does not invalidate those already in use. And it has been held, that a covenant to stand seised is a valid mode of conveying lands in that State, and that a freehold may thereby be created to take effect in futuro.5
Note. — It was held in a recent case, that though a contingent remainder may be barred by a conveyance of the particular estate by feoftinent, it would not be by a conveyance under the statute of uses, nor under the form recognized by the statute of the State. Dennett v. Dennett, 40 H. 498.
1 Mason v. Smallwood, 4 Harr. & M’H. 484.
11. In Pennsylvania, it was reported by the judges of the Supreme Court, that, among the English statutes in force there, were the first to the seventh with the ninth and tenth sections of the statute of uses;- and many cases have arisen in that State in which this statute, as affecting the conveyances of lands, is expressly recognized.? In one of these cases, it was held to be sufficient to give effect to the statute and raise a use, if there was an acknowledgment of a previous consideration, although the jury found that none had been paid. It has also been held, that a use may be raised by a deed of bargain and sale, or any other form of conveyance duly recorded, in any one in whose favor it is expressly declared by the deed, though no consideration be expressed ; 4 though in an earlier case it had been decided, that in order to raise a use by bargain and sale there must be a valuable consideration acknowledged in the deed, but the amount need not be stated. It is not proposed here, to examine the question raised in some of those cases, whether or not a trust is raised by certain forms of expression in deeds, but merely to show * how far the English statute of uses has [*150] been adopted in this State. It should be added, that by statute, all deeds made and executed in the form therein prescribed, are as valid as deeds of feoffment with livery of seisin at the common law.6
In the Circuit Court of the United States for the District of Pennsylvania, the subject of uses as applied to conveyances is fully examined by Washington, J., in a case in which it was held that a conveyance by lease and release may be good, the lessor standing seised to the use of the lessee for a year, and the release of the freehold taking effect at common law. So that if, in such a case, the lease and release be to A and his heirs, to the use of A and his heirs, to the use of B and his heirs, it would not be a use upon a use, but the deed would operate like a feoffment to A to the use of B, where the statute executes the use in B. But, by a bargain and sale or covenant to stand seised, the first use executes in the bar
1 3 Binn. 599. ? Ashhurst v. Given, 5 Watts & S. 323; Wilt v. Franklin, 1 Binn. 502; Sprague v. Woods, 4 Watts & S. 192; Okison v. Patterson, 1 Watts & $. 395.
3 Wilt v. Franklin, 1 Binn. 502. • Sprague v. Woods, 4 Watts & S. 192.
gainee or covenantee, and if a second be limited, it becomes a trust.. The words “ ” and “ trust” in a deed being convertible terms, the sense in which they are used depends upon the subject-matter to which they relate. In the case cited, it is assumed that the freehold estate which vests in the releasee by enlargement, is an estate at common law, and does not require the aid of the statute to execute the possession to the use, and that there is, therefore, no second use in such a case, and the statute executes the use to B, the second person named. But in Doe v. Passingham,2 it was held, that where the
limitation was by deed of grant and release, to A, to the use [*151] of A, in trust for B, though it was true *that A was in by
the common law, yet he was in of the estate clothed with the use which remained in him, and that in such case, the use of the estate was executed in the trustee. And although the trustee takes the seisin by the common law and not by the statute, yet he takes that seisin to the use of himself and not to the use of another, in which case alone the use is executed by the statute. The court of Pennsylvania, in the case of the grant of a fee-farm rent to one in fee, for the use of himself, his heirs and assigns, to receive the same in trust for another person named in the deed, held, that the statute did not execute or operate upon the second or ulterior use. The subject is further considered in the authorities cited below.4
12. In New Jersey, a statute of the State accomplishes very much the same thing as the statute of 27 Hen. VIII., declaring that wherever uses are limited, granted, released, sold, given, or conveyed by deed, grant, &c., the grantees are to be in as full possession as if they were possessed by solemn livery of seisin and possession. The purposes of this statute have been declared to be to unite or transfer the possession to the use, and to declare the nature and quality of such possession. But though the one entitled to the use in lands, is declared to be in as full possession as if pos
| Hurst v. M'Neil, 1 Wash. C. C. 70. ? Doe v. Passingham, 6 B. & C. 305. 8 Franciscus v. Reigart, 4 Watts, 118.
• 1 Sugd. Pow. 3d Am. ed. 169; Whetstone v. Bury, 2 P. Wms. 146; Doe v. Martin, 4 T. R. 89; 2 Smith, Lead. Cas. 5th Am. ed. 454. Where the proposition is stated thus : "Nothing is better settled in conveyancing than that where a lease and release or feoffment is made to A to the use of B, the statute is limited in its operations to A, and the use to B takes effect only as trust,” obviously omitting by mistake, the words“ to the use of A,” after A in the text. But see Co. Lit. 271 b, n. 231 by Butler, III., 3. Post, p. *606 note.