OBSERVATIONS ON RESULTING USES. Referred to, suprà, p. 33. THE limitations in a deed operating under the Statute of Limitations in Uses, must, in their creation, be either conveyances to uses must be 1. Vested, conferring, therefore, legal estates, (as where Vested, the land is limited to A. for life, remainder to B., for life or in tail, remainder to C. in fee, or to A. for life, remainder to B. for life, or in tail,) in which case the whole use of the fee simple, (in the first example,) or such portion of the use as the limitations embrace, (in the second example,) is immediately drawn out of the grantor, covenantor, &c. and executed in the cestui que use by the statute, and the undisposed of residue of the use, (in the second example,) results to, or remains in, the grantor, &c. as a reversion expectant on the particular estates created by the limitations ;—or, 2. Not vested, and not, therefore, conferring legal estates, or not vested, (as to the heirs of the body of B. a person now living, or to A. for life, if he shall return from Rome, remainder to the heirs of the body of B. now living, or from and after Christmas-day next to A. in fee,) in which case the whole use of the fee simple results to, or remains in, the grantor, &c. subject to be drawn out of him to the extent of the estates to be conferred by the limitations on their becoming vested, either as remainders, if eventually capable of effect as such, (for in the second example, the limitation to the heirs of the body of or partly vested and partly not vested. In every case either, the whole use results, or no use results, or the use of the ultimate fee results. B. would be good as a contingent remainder, if A. should return from Rome in B.'s lifetime,) or if not so capable, and if confined within the bounds prescribed by the rule against perpetuities, then as springing or future uses;—or, 3. Partly vested, and partly not vested, (as to A. for life, remainder to the heirs of the body of B. a person now living, remainder to C. in fee; or to A. for life, and at the end of one year, or one day after his death, to the heirs of the body of B.) in which case such portion of the use as the vested limitations embrace, is immediately drawn out of the grantor, &c. and executed in the cestuis que use by the statute; and the undisposed of residue of the use results to, or remains in the grantor, &c. as a reversion, expectant on the particular estates created by such vested limitations, subject to be drawn out of him to the extent of the estates to be coferred by the remaining limitations on their becoming vested, either as remainders, or as springing or future uses. n The foregoing propositions of course assume, that in deeds taking effect by transmutation of possession, there is nothing to rebut the supposed resulting use, and fix it in the feoffees, releases, &c.; and it should be observed that the legal use will not result to the grantor, releasor, &c. where it would defeat the intent of the conveyance by merging a particular estate expressly limited to the grantor, releasor, &c. Assuming these positions to be accurate, it would seem to flow from them as a necessary consequence, that by no possibility can a particular estate of freehold in any case result to, or remain in, the grantor, covenantor, &c.—for, 1. Where no limitation is vested, less than the whole use of the fee simple cannot result or remain ;-and, 2. Where all or some of the limitations are vested, and absorb the whole use of the fee simple, nothing can result or remain ;-and, 3. Where all or some of the limitations are vested, but do not absorb the whole use of the fee simple, the residue of the use (being the ultimate remnant of the ancient use) will result or remain, as a reversion expectant on such portion of the use as passes in the particular vested estates. The grantor, &c. cannot, therefore, be in of a particular estate of freehold, as part of his old use, whereof he hath not disposed, because if he make a partial disposition of the use, it must be in some particular vested estate or estates, and such particular estate or estates being deducted, the residue will be the use of the ulterior fee simple. |