CHAPTER XVIII. CONVEYANCES UNDER THE STATUTE OF USES. What are the methods employed for creating uses under the statute? (i.) A feoffment to uses; (ii.) covenant to stand seised; (iii.) bargain and sale; (iv.) lease and release; and (v.) grant to uses. At what period were the last-mentioned conveyances brought into use? The first three before and at the date of the passing the Statute of Uses; the other two owe their present operation to the statute. They were found universally useful in conveyancing, because the estate could be conveyed by a secret deed, by bargain and sale, or covenant to stand seised, and, as we have before seen, these conveyances were free from the restrictions and modifications of the Common Law. What is a feoffment to uses? Simply the ordinary feoffment we have already discussed, with a further limitation to uses. Such as a feoffment to A. to the use of B. What is a covenant to stand seised? It arises where a man seised of lands covenanted, in consideration of blood or marriage, that he will stand seised of the same to the use of some relative. It is never used in conveyancing on account of its restricted application. What is a bargain and sale, and what was its chief recommendation? It is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is contracts to convey, the land to the bargainee, and thus becomes trustee for or seised to the use of the bargainee, and the Statute of Uses transfers the use into possession. Its chief recommendation was its secrecy, for it passed an estate of freehold without livery of seisin; but by 27 Hen. VIII. c. 18, bargains and sales of freeholds were for the future to be by deed indented and enrolled within six months in one of the Superior Courts at Westminster, or before the Custos Rotulorum of the county. This species of conveyance would, however, confer an estate for years without entry. No particular form of words is necessary either for a bargain and sale or a covenant to stand seised. Describe the mode of conveyance by bargain and sale for a year, and release, commonly called lease and release; state the circum stances which led to the use of it, and when a bargain and sale ceased to be necessary. This method of conveyance was introduced shortly after the Statute of Enrolments of bargains and sales (27 Hen. VIII., c. 18), because it was found that that statute only spoke of bargains and sales of freeholds of inheritance. Consequently the lands were bargained and sold for the term of one year, and then a release of the reversion was taken, thus doing away with the necessity of entry. 4 & 5 Vict. c. 21, enacted, however, that every instrument purporting to be a release of a freehold estate, and expressed to be made in pursuance of the Act, should be as effectual as a lease and release. In what year was the Statutes of Enrolments passed? What state of things led to its being passed, and how were its provisions practically defeated? See last two preceding answers. What is a lease and release? It consists of two parts—(i.) a bargain and sale; (ii.) a Common Law release. It was introduced shortly after the Statute of Enrolments last mentioned, because it was found it only spoke of bargains and sales of freeholds of inheritance; consequently the lands were bargained and sold for the term of one year, and then a release of the reversion was taken; thus doing away with the necessity of entry. 4 & 5 Vict. c. 21, however, enacted that every instrument purporting to be a release of a freehold estate, and expressed to be made in pursuance of the Act, shall be as effectual as a lease and a release. What is a grant to uses? uses. Simply a grant of corporeal hereditaments with limitations to The seisin created by 8 & 9 Vict c. 106, and the use executed by the Statute of Uses, and the operation is the same of a conveyance under the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 49, which has made the use of the word "grant" unnecessary. What are the peculiarities of conveyances under the Statute of Uses? (i.) There must be a seisin and a use expressed or implied; consequently the statute does not apply to leaseholds or copyholds. (ii.) A corporation aggregate cannot adopt them. (iii.) The word heirs must formerly have been inserted; and What latitude is allowed to conveyances under the Statute of Uses ? (i.) A man in this way can indirectly take an estate by his own conveyance, and convey to someone else to the use of his wife. And now under the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 50, a man may convey freeholds directly to himself jointly with another or others, and may also convey freeholds directly to his wife either alone or jointly with another or others. (ii.) An estate may be made to spring up in futuro independently of any preceding estate, by what is termed a springing use, e.g., a covenant to stand seised. (iii.) By means of a shifting use a fee can be limited on a fee, the second being in derogation of the first. (iv.) By powers of revocation and new appointment, a man. can reserve to himself, or confer on anyone else, the power of revoking or altering a grant. Define a "springing-use," and gire an illustration. A use limited in futuro independently of any preceding estate; as if an estate be conveyed to A. and his heirs, to the use of B. and his heirs at the death of C. What effect had the introduction of uses upon a conveyance to A. in fee or for life with a proviso that on the happening of a certain event the property was to go over to B. in fee? And give the reason for your answer. The effect was that the maxim-a fee cannot be limited on a fee -was utterly defeated because, though an estate could not be made to shift over in this way, a use might, and therefore, since the statute, land may be conveyed through the medium of a use, which is, of course, transmuted into legal estate by virtue of the statute, 27 Hen. VIII. c. 10. What are the every-day instances of powers of revocation and new appointment, and why are they so called? (i.) Leasing; (ii.) jointuring; (iii.) selling and changing land into money. They are so called because new dispositions, not authorised by the conveyance, act as revocations of what is therein contained. What are the formalities prescribed by statute with reference to the execution of deeds and wills pursuant to powers for that purpose, and quote the statutes? By 22 & 23 Vict. c. 35, s. 12, it is provided that so long as the deed is executed in the same manner in which deeds are ordinarily executed, viz., in the presence of two witnesses, it shall be deemed a valid execution in pursuance of such power, and 1 Vict. c. 26, s. 10, contains the like provision as regards wills. What is the limit for an executory interest to vest so as not to infringe the law against perpetuities? An executory use must vest during any number of existing lives in being, and twenty-one years afterwards, allowing a further period for gestation at the end of the twenty-one years. And by the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 10, it is enacted, with regard to instruments coming into operation on or after 1st January, 1883, that an executory interest to take effect in default of issue, or on failure of issue, of the tenant of the executed estate shall become void so soon as any of such issue attains the age of twenty-one years. For what period can real estate be tied up by way of settlement, so as to prevent alienation of the fee during such period? See last answer. What are the principal provisions of Thellusson's Act, 39 & 40 Geo. III. c. 98? That income of property shall not be accumulated for a longer period than―(i.) the life of the grantor, settlor, devisor, or testator; or (ii.) twenty-one years after his death; or (iii.) during the minority of any person living or en ventre sa mère at the death of the grantor or testator; or (iv.) during the minority of the person who, if of full age, would have been entitled. It must be borne in mind that there are exceptions to this Act in cases of―(i.) the produce of timber or woods; (ii.) portions for younger children; (iii.) payment of debts; and if the accumulation exceeds Thellusson's Act, it is only void for the excess so long as it does not exceed the original rule against perpetuities. CHAPTER XIX. CONVEYANCES BY TENANTS IN TAIL, ETC. Having regard to the conveyances lately mentioned, how far could a tenant in tail or married woman pass their estates by them in their simple form? They are only applicable to a tenant in tail so far as leasing his estate for twenty-one years goes, and to a married woman to enable her to dispose of her separate estate. Whence arose these incapacities of conveyance, and how were they formerly removed? The former from the statute of De Donis; the latter, which is a personal one, from the Common Law. These incapacities were formerly removed by fines and recoveries, which branch of the law has been entirely remodelled by 3 & 4 Will. IV. c. 74, the Statute for the Abolition of Fines and Recoveries, and the substitution of more simple modes of assurance. What were fines and recoveries? Fictitious suits, both commenced in the Court of Common Pleas, the former being compromised in progress of the suit, and only barring the issue unless levied with proclamation; the latter carried on to judgment and execution, and barring reversioners and remainders. Originally actions at law for recovery of land, they were afterwards adopted as a means of transfer between friendly litigants. What was a fine? A fine, or, as it is sometimes called, a feoffment of record, was an amicable composition or agreement of an actual or fictitious suit, whereby the estate in question was acknowledged to be in the right of one of the parties, so called because it put an end not only to the particular suit, but all others in the same matter. What were the parts of a fine? (i.) The writ of covenant on which was due the Primer Fine. (ii.) The licence to agree the suit, on which was due the Post Fine or King's Silver. (iii.) The concord. (iv.) The note of the fine. (v.) The foot of the fine. To which 4 Hen. VII. c. 24, added (vi.) Proclamations. What were the various kinds of fines? There were four kinds, viz. : (i.) Sur cognizance de droit come ceo que il ad de son don, or an acknowledgment of the right of the cognizee as that which he hath of the gift of the cognizor. It was a feoffment of record. (ii.) Sur cognizance de droit tantum, an acknowledgment of right merely. This was generally used to pass the reversionary interest of the cognizor. (iii.) Sur concessit, where the cognizor, to end all disputes, though without acknowledging any precedent, yet granted to the cognizee an estate de novo. |