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When Executed Subsequently. No subsequent secret revocation of a solemn conveyance executed by livery of seisin was then allowed, though when uses were introduced, a revocation of such uses was permitted by courts of equity. But things that were merely executory, or to be completed by matter subsequent, as rents, of which no seisin could be had till the time of payment, and so also annuities, conditions, warranties and the like were always liable to be recalled by subsequent defeazances. CONVEYANCES UNDER THE STATUTE OF USES.

Origin of Uses and Trusts. Uses and trusts are in their origin of a similar nature, answering more to the fidei commissum, than the usus fructus of the civil law, which latter was the temporary right of using a thing, without having the ultimate property. But the fidei commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence, that he should convey it or dispose of the profits at the will of another. The right was deemed a vested right, which occasioned the well-known division of right by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarum, a right in trust, for which there was a remedy in conscience, and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request. In our law, a use might be ranked under the rights of the second kind, being a confidence reposed in the terre-tenant, that he should dispose of the land according to the intentions of cestui que use, or him to whose use it was granted, and suffer him to take the profits.

History of Uses in England. The notion was taken from the civil law in the reign of Edward III, by means of foreign ecclesiastics, to evade the statutes of mortmain, by obtaining grants of land to the use of religious houses. This evasion was crushed by statute of Richard II, with respect to such houses. The idea continued, however, to be applied to a number of civil purposes, particularly as it removed the restraint of alienations by will. During the contentions between the houses of York and Lancaster, uses grew almost universal, through the desire men had in those perilous times to provide for their children by will, and of securing their estates from forfeitures, when each of the contending parties, as they became uppermost, attainted the other.

When the Trust was Discharged. Chancery originally could give no relief, but against the person himself intrusted for cestui que use, and not against his heir or alienee. This was altered under Henry VI. A purchaser for valuable consideration, without notice, held the land discharged of any trust. Neither the king nor any corporation aggregate could be seised of any use but their own; that is, they might hold the lands, but need not execute the trust.

Not liable to perform the Trust. If the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained as tenant by the curtesy, nor the wife by dower assigned, were liable to perform the use; because they were not parties to the trust, but came in by act of law.

Rules as to Uses. The use itself or interest of the cestui que use had elaborate distinctions:

(1) Nothing could be granted to an use, whereof the use is inseparable from the possession, as annuities, ways and commons, or whereof the seisin could not be instantly given.

(2) An use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself, unless he expressly declares it to be for the use of another.

(3) Uses were descendible, according to the rules of the common law, in the cases of inheritances in possession.

(4) Uses might be assigned by secret deeds between the parties, or be devised by last will, as no livery of seisin was necessary. But cestui que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee, to whom he was only tenant at sufferance.

(5) Uses were not liable to any of the feudal burdens, and did not escheat for felony or other defect of blood, but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime, and the lord might hold it discharged of the use.

(6) No wife could be endowed, or husband have the curtesy of a use, for no trust was declared for their benefit at the original grant. Hence it became customary to settle before marriage some joint estate to the use of husband and wife for their lives, which was the origin of marriage jointures.

(7) A use could not be extended by writ of elegit, or other legal process, for the debts of cestui que use.

Abuses of Uses. The doctrine of uses was full of niceties and subtleties. Lord Bacon says, that this course of proceeding “was turned to deceive many of their just rights. A man who had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds, the husband of his curtesy, the lord of his wardship, relief, heriot and escheat, the creditor of his extent for debt, and the poor tenant of his lease.” To remedy these inconveniencies, many statutes were passed, which tended to consider cestui que use as the real owner of the estate.

Statute of Uses. This idea was carried into full effect by the statute of uses, passed under Henry VIII. This in conveyances and pleadings, was called the statute for transferring uses into possession. This statute enacts, that when any person shall be seised of lands, etc., to the use of, or in trust for any other person or body politic, the person or corporation entitled to the use shall from thenceforth be seised or possessed of the land, etc., of and in the like estates, as they have in the use or trust, and that the estate of the persons so seised to uses shall be deemed to be in him who has the use, in such quality, manner, form and condition as they had before in the use.” The statute thus executes the use, that is, conveys the possesion to the use, and transfers the use into possession, making cestui que use complete owner.

Effect of this Statute. This statute did not abolish the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of the cestui que use into a legal instead of an equitable ownership. Thereupon the courts of common law began to take cognizance of uses, instead of sending the party to seek relief in chancery. As the statute, the instant a use was raised, converted it into an actual possession, most of the incidents formerly attending it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to a purchaser, discharged of the use, nor be liable to dower or curtesy, from the seisin of the feoffee, because the legal estate was instantaneously transferred to cestui que use, when the use was declared. And as the use and the land were now convertible terms, they became liable to dower, curtesy and escheat, in consequence of the seisin of cestui que use, who was now become terre-tenant also; and likewise were no longer devisable by will.

Interpretation by Judges. The necessity of mankind induced the judges to abate the rigor of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses, than upon others. Hence it was adjudged, that the use need not always be executed, the instant the conveyance was made, and if it cannot take place at that time, the operation of the statute may wait till the use shall arise upon some future contingency, within a reasonable time, meanwhile the ancient use shall remain in the original grantor.

Differs from an Executory Devise. Which doctrine, when devises by will were again introduced, and considered equivalent in point of construction to declarations of uses, was also adopted in favor of executory devises. But herein these, which are called contingent or springing uses, differ from an executory devise, in that there must be a person seised to such uses, at the time when the contingency happens; hence if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever; whereas by an executory devise, the freehold itself is transferred to the future devisee.

Fee Limited after a Fee. In both these cases a fee may be limited to take effect after a fee, because when the legal estate was not extended beyond one fee-simple, such subsequent uses, after a use in fee, were before the statute, permitted to be limited in equity, and then the statute executed the legal estate in the same manner as the use before subsisted.

Shifting and Resulting Uses. It was also held, that a use, though executed, may change from one to another by circumstances ex post facto, which is called a secondary or shifting

And whenever the use limited by the deed expires, or cannot vest, it returns to him who raised it, and is styled a resulting use.

Revocation of Uses. The uses originally declared may be revoked at any time, and new uses be declared of the land, provided the grantor reserved such power at the creation of the estate, whereas the utmost allowed by the common law was a deed of defeazance, coeval with the grant itself, and therefore a


part of it. In case of such revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.

Restrictions in Uses. By this train of decisions in courts of law, the power of the court of chancery over landed property was greatly curtailed. But a few technical scruples restored it with tenfold increase. The judges held, that no use could be limited on an use, and that when a man sells his land for money, which raises an use by implication to the bargainee, the limitation of a further use to another person is repugnant, and therefore void. And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed the first use, and that the second was a nullity. Again as the statute mentions only those seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised, but only possessed. And lastly, where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute, for the land must remain in the trustee, to enable him to perform the trust.

Deemed Trusts in Equity. The court of chancery determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. Thereupon the doctrine of uses was revived, under the denomination of trusts, and a statute was introduced, which merely made a slight alteration in the formal words of a conveyance.

Doctrine and Effect of Trusts. Courts of equity, in this new jurisdiction, wisely avoided many of those mischiefs, which made uses intolerable. The statute of frauds of Charles II having required, that every declaration, assignment or grant of any trust in lands or hereditaments, except those arising from implication or construction of law, shall be made in writing and signed, the courts now consider a trust estate as equivalent to the legal ownership, governed by the same rules of property; and trusts have been made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is merely the instrument of conveyance, and can affect the estate, only by alienation for a valuable consideration to a purchaser without notice, which as cestui que use is generally in. possession of the land, can rarely happen. The trust will

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