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Hill, supra, 411, 412. Cincinnati v. Lessee of White, 6 Peters, 431, 438.)

The statute of frauds (2 R. S. 134, § 6,) does not make it necessary that a dedication of lands for public or pious uses should be by deed, or by an instrument in writing. It expressly excepts from that requirement such transfers of an interest in land as are made by operation of law.

PART II.

OF EQUITABLE ESTATES.

IN this part of our treatise we propose to pass under review the

law with respect to uses, trusts, powers, marriage settlements and merger.

It embraces that branch of the law of real property, which was originally administered almost exclusively by courts of equity, and which, at the present day, requires the frequent interposition of equity to afford relief. As the doctrine of uses, trusts and powers, underwent radical changes in this state, at the revision of the statutes in 1830, and as these statutes were intended to supersede the former practice and laws of the state, it is deemed advisable that we should retain the same divisions of the subject.

Marriage settlements owe their origin, in a great measure, to the doctrine of uses and trusts, and derive their efficacy from the same source. They may, therefore, appropriately be treated under this head. And the law of merger has such a connection with both legal and equitable estates, that it may with great propriety be discussed in this place.

We shall treat of uses and trusts together in the first chapter, and the other subjects of this part, in successive chapters.

CHAPTER I.

OF USES AND TRUSTS.

It is impossible fully to comprehend the provisions of the revised statutes on the subject of uses and trusts, without some knowledge of the system which was previously in force, and which the new

(228.)

system was intended to supplant. The enactment is, that uses and trusts, except as authorized and modified by the same statute, are abolished; and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in the same chapter. (1 R. S. 727, § 45.)

It has sometimes been argued that questions growing out of the law of trusts should be treated as if the legislature had, in the first instance, annulled all trusts, and then proceeded to a new creation. This is an erroneous view of the subject. It is more correct, as was observed by Gardiner, J. in Leggett v. Perkins, (2 Comst. 307,) to say, that they abolished all that they have not recognized as existing. The trusts preserved have their foundation in the common law, and their effect is to be determined by the application of common law principles.

At common law, an use was neither jus in re, nor ad rem; that is, neither an estate nor a demand. It was a trust reposed by any person in the terretenant, that he may suffer him to take the profits, and that he will perform his intent. It was, in short, an ownership in trust.

Although the cestui que use was generally in possession of the lands, yet he was considered by the courts of law as tenant at sufferance. When the court of chancery first assumed a jurisdiction in cases of uses, it went no further than to compel payment of the rents and profits to the cestui que use. In process of time it went a step further; and established the rule that the cestui que use had a right to call on the feoffees to uses for a conveyance of the legal estate to himself, or to any other person whom he chose to appoint; and also to defend the title to the land. The legal estate was vested in the feoffee to uses, who performed the feudal services; who was deemed the tenant of the fee, which was liable to his incumbrance.

The right in conscience and equity to the rents and profits of the land, was not issuing out of the land, but was collateral thereto, and only annexed in privity to a particular estate in the land. It was created by a confidence in the original feoffee, and continued to be annexed to the same estate, as long as that confidence subsisted and the estate of the feoffee remained unaltered. So that to the execution of the use two things were necessary, namely, confidence in the person and privity of estate. (Cruise's Dig. tit. 11, Use, ch. 1.)

All private persons who were capable of taking lands by feoffment might be seised to a use, and were compellable in chancery to

execute it. All corporeal hereditaments and such incorporeal hereditaments as were in esse, as rents and the like, might be conveyed to a use. But it could not, like a feoffment, be created without a sufficient consideration. It was not an object of tenure. It was not forfeitable for the treason of the cestui que use; nor extendible for his debts. It was neither subject to dower or curtesy. It might be transferred by one to another by any species of deed or writing. A use might be declared to a person who was not a party to the deed by which it was raised, contrary to the rules of the common law, which allowed no one to take under a deed unless he was a party to it. The cestui que use in possession could alien the lands, and none of the technical words required in other conveyances were indispensable. He could create a fee simple without the word heirs. It could be created to take effect in futuro. A power of revocation of the use might be annexed to the instrument by which it was created. It might be so limited as to change from one person to another, upon the happening of a future event. It was devisable and descendible in the same manner as legal estates. (Cruise's Dig. supra. Crabbe's Law of Real Property, 1065 et seq.)

The inconvenience which was found to arise from uses, after other ineffectual efforts to remove them, led to the enactment of the 27th Hen. 8, ch. 10, commonly called the statute of uses, the object of which was entirely to abolish uses by destroying the estate of the feoffees to uses, and transferring it from them to the cestui que use, whereby the use would be turned into a legal estate. The consequence of which would be the cestui que use would become the complete owner of the estate as well in law as in equity. This statute, frequently spoken of as the statute for transferring uses into possession, was re-enacted in this state at an early period, and continued in force until 1830. (Act of Feb. 20, 1787, 1 R. L. 72.)

There were three things necessary to the execution of a use under the statute: 1. A person seised to the use of some other person; 2. A cestui que use in esse; and 3. A use in esse in possession, remainder or reversion. (Chudleigh's case, 1 Co. 126 a, and notes.)

The object of the legislature was entirely defeated by the narrow construction of the statute by the common law judges. The statute declared in substance that whenever any person is seised to the use of another, the person so entitled to the use, should also be entitled to the possession and legal estate. The judges decided according to the letter, overlooking the spirit of the law, and held that where

successive uses are contained in a conveyance, it is the first only, which in technical language is executed by the statute. Thus a grant to A. to the use of B. to the use of C. was held to vest the legal estate by force of the statute in B., while C. retained the beneficial ownership, in the same manner as if the statute had never been passed. In such cases, as was said by the revisers in their note to the statute which they proposed, the whole effect of the law was to change, not the estate but the trustee. Though the statute, under the construction given to it, did not accomplish all that was desired, it effected important and durable consequences in the law of real property. The statute did not abolish existing uses, nor prohibit the conveyance to uses in future. It only declared that both existing and future uses, as they arose, should become legal estates, and the effects were, among other things, to introduce new forms of conveyances, by which the title and possession of lands were transferred without livery of seisin, which at common law was indispensable, and new modifications of property, which the increasing wants of society demanded, but which the genius of the feudal system forbade. (See Notes of Revisers, 3 R. S. 582, 2d ed.)

The construction given by the courts of the common law to the statute of uses gave rise to the whole doctrine of trusts.

The second use, which the courts held was not executed by the statute, was treated by courts of equity as a trust, and enforced by them as such. A trust, therefore, is merely what a use was before the statute of It is an interest resting in conscience and equity, and the same rules apply to trusts in courts of equity which were formerly applied to uses. (Jackson v. Fleet, 14 Wend. 180, per Nelson, J. Fisher v. Fields, 10 John. 495–506.)

uses.

It is needless to go into an examination of the doctrine of uses under the act of Henry 8, re-enacted here in 1787, any further than will be necessary to explain the existing state of the law. It is supposed that the legislature, in 1830, intended to accomplish what the British parliament failed to do in the reign of Henry 8, namely, to execute the last use; or in other words, they intended the entire abolition of uses, while they retained and improved, by new provisions, all the benefits which ever flowed from the system; such, for example, as relate to the simplicity of the conveyances to which the doctrine of uses gave rise, and the better mode of alienation of property than formerly prevailed.

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