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veyance of land by the government did not carry the precious metals within it unless expressly granted, whereas by the law of California, such a conveyance, whether by the State or the United States to private owners, carries the minerals, unless the same are expressly reserved in the grant. By the English common law, mines of gold and silver belonged to the crown as an incident to the royal prerogative. In the grant of the English colonies in New England the crown reserved one fifth of the precious metals, and mines were leased by the colonial government to such as discovered them, subject to this reservation.3 In New York, these metals belong to the people as successors of the sovereignty.4
Note. — The legislation and course of decisions, some of which have been cited above, under which this branch of the law, in California, has received a practical and intelligible form, owes much of its character and consistency to the late Chief Justice of that court, now transferred to a court of wider jurisdiction, who has had the rare privilege of taking a prominent and leading part in adapting the infant institutions of that vast Commonwealth to its growing wants and rapid development, and in engrafting upon the vigorous stock of the American common law, a system of rules and principles suited to the peculiar condition in which a great people, born as it were in a day, found themselves, upon assuming the character of an independent State.
1 Moore v. Smaw, 17 Cal. 199.
2 Co. Lit. 4 a; Plowd. 313. 3 3 Dane, Abr. 137. 4 Willard, Real Estate, 50. See Wms. Real Prop. 14, note.
Sect. 1. Uses prior to Statute 27 Hen. VIII.
USES PRIOR TO THE STATUTE 27 HEN. VIII.
1. Division into legal and equitable estates. 2. History of uses. 3. Fidei-commissum and usufructus. 4. Uses introduced by the ecclesiastics. 5. The double nature of uses requires two parties. 6. Uses defined. 7. Distinction between early uses and trusts. 8. Uses when first introduced into England. 9. Remedy by subpæna contrived. 10. Cestui que use not recognized by law. 11. What may be conveyed to use. 12. Who may be feoffors to use. 13. Rules created by equity as to property in uses. 14. May be created without writing, except of rents and the like. 15. Of uses raised by equity — resulting uses. 16. No use implied where one is expressed in deed. 17. No use results, if a consideration is paid.
18. Parol declaration of use enforced, if for a consideration.
1. The next class of interests in real property to be considered, in the proposed order of arrangement, are not only of an incorporeal character, but are, from their nature, to be traced from a different source from any of those which have thus far been treated of, except what may have been embraced under mortgages. With this single exception, the estates which have been examined, had their origin and derived their qualities and incidents from the common law, whereas that class which is now to be treated of, was derived from the rules and principles which prevail in courts of equity. And this diversity of origin gave rise to the terms “legal;” and “ equitable," by which the two classes of estates are distinguished. Under the latter, are embraced Uses, which are to form the subject of the present chapter.
2. Before entering into the details of the law applicable to uses, it seems proper briefly to notice their history and general character. They lie at the foundation of the whole system of trusts, enter essentially into the forms and effect of modern conveyancing; are constantly applied in framing and carrying out family settlements, and though no longer existing as a distinct species of property, they are made to play too important a part in the law of real property as a system, to be passed over without a somewhat extended examination. The history of their rise, the attempt to suppress them by legislative enactments, and the final moulding and blending of their qualities and incidents into the common law, present a remarkable illustration of the irresistible power of the common will of a people to make for itself such amendments in the existing laws as their necessities demand, independent of the recognized system of legislation through which a State is governed. The common law, in its feudal elements, had little reference to trade or commerce. The relation of
lord and vassal recognized no ownership in land beyond an [*92] occupancy and possession by some *acknowledged proprietor,
who was to perform the requisite feudal services belonging to the same.
And it was, as has heretofore been stated, by slow degrees only that land became alienable at all. When, therefore, commerce began to develop itself, and to stimulate the awakening spirit of the English people, it is not surprising that ingenuity was quickened to devise some means by which real estate should receive the quality of convertibility, in some more flexible form than that which had hitherto been known to the feudal law. This was aided by the ingenuity of English ecclesiastics in their attempts to evade the laws against mortmain, which the barons and other landed no bility had procured to be enacted, to counteract the grasping cupidity of the church at that day. In a superstitious age, among a people whose passions were under little restraint, and who were taught to believe that expiation for sin might be made by acts of consecration of worldly possessions to the advancement of the church, it had become customary to transfer lands to ecclesiastical establishments for religious uses, till attempts were made to prevent this, first by the 36th chapter of Magna Charta, in 1217, and afterwards by the statute 7 Edw. I., De Religiosis, in 1279, prohibiting the conveyance of lands in mortmain, under the penalty of forfeiting the same to the crown or the chief lord of the fee, under whom the lands had originally been held.
The mode in which it was attempted to evade these laws was this: There had from an early period been a high officer in the kingdom with judicial powers and functions, under the name of Chancellor, an office which was early filled by an ecclesiastic. As a judicial officer, he drew many of his rules and notions of chancery law from that of Rome. Prior to the time of Augustus, the Romans had, by a variety of independenti laws, excluded many classes of persons from taking property as heirs, which term included as well those who took by devise, as by descent. Among these, for instance, women
were excluded by the Voconian law. Hence it became cus[*93] tomary, in order to *evade these laws, for persons wishing to constitute others as their heirs who could · not take property by direct appointment, to give the same to some one qualified to take as heir, with a request that he would restore the inheritance or some principal part of it to the one who was the real object of the donor's bounty. There was not, however, until the time of Augustus, any means of enforcing an execution of this confidence. It depended entirely upon the good faith of the person named as the heir.? During his reign, the consuls were directed to compel a performance in such cases, and afterwards, a praetor was created to whom jurisdiction over questions of this character was specially assigned. 3
1 i Camp. Lives of Chancellors, 30.
2 1 Brown, Civil Law, 304.
3. Where property was given in this way it was called a fidei-commissum, and is to be distinguished from a usufructus, which was a mere right to use or enjoy what was another's, without spoiling or diminishing it; and, as Bacon says, " is nothing like in matter to uses. “But that which resembleth the use most is fidei-commissio."4The twenty-third title of the second chapter of the Institutes relates to this class of interests, and provides for an examination upon oath of the person named as heir, whether the property was not given him in trust.
4. What had been so common under the Roman law, served as a ready hint to clerical chancellors, willing to advance the cause of the church, and not over-scrupulous in respect to the means by which this was to be done. And although there may be some question whether they actually introduced the doctrine of uses into the English from the civil law, they were the first to supply a remedy by which to enforce them, and thus give form and efficiency to the system. The clergy were, thereby, furnished with a ready means by which to evade the *statutes of mortmain, by sim- [*94] ply having lands conveyed in fee-simple to some one in whom the church might confide, upon the faith that he should permit the ecclesiastical body intended to be benefited to enjoy the profits of the estate. But, though an attempt was made by the statute 15
! i Spence, Eq. Jur. 436.
2 Bac. Law Tracts, 515. 3 Inst. 2, 23, 12; 1 Spence, Eq. Jur. 436; Bac. Law Tracts, 315.
* Bac. Law Tracts, 315, where the form of a testament giving an inheritance to one to the use of another, is quoted in these words : " Heredem constituo Caium, rogo autem te, Caie ut hereditatem restituas Seio." Cornish, Uses, 10.
6 1 Report, Eng. Com. Real Est. 8; Bac. Law Tracts, 318, 324. 61 Spence, Eq. Jur. 440; 2 Black. Com. 328.