CHAP. III.

3. by the construction of the judges, with respect to a use upon a use.

Effect of that construction in

3. But the judicature established a yet more extensive and important exception, by the rigid construction put upon the language of the party declaring the use. The statute aimed at rendering uses innoxious, by turning the use into a legal estate-the confidence in the person into a direct right to the land. It annexes to the use the actual possession of the subject; not prohibiting the creation of uses, but only acting upon the use when created. Now the judges thought fit to determine that if A., the legal owner of the land, is directed to hold, or contracts to hold, the land to the use of B., who at the same time is directed to hold, or contracts to hold it, to the use of C., the statute will carry the land to B. at law, but carry it no further, leaving C., for whom the use or benefit is really designed, to enforce his right to a conveyance, and an account of the profits, by a suit in equity against B., with whom the legal possession rests. The ultimate use in favor of C. is said to be a use upon a use, which the statute, having exhausted itself in the extraordinary effort of communicating the properties of a legal estate to the use in favour of B., has not remaining energy enough to reach.

Hence the distinction between the legal and equitable creating trusts. Ownership is still maintained in all its vigour. In order to create, since the passing of the statute, an interest purely equitable, nothing more is necessary than to declare a second use: the statute has added, as Lord Hardwicke observed, three words (to the use) to a conveyance. Suppose that A., for example, sells land to B., who desires to have the legal estate vested in his confidential friend C., the object is effected either by A.'s conveying the land to C., to the use of C., to the use of (or, as we now express it, in trust for) B.; or by A.'s

contracting (i.e. by bargain and sale) to hold it to the CHAP. III. use of C., to the use of (i. e. in trust for) B. In the former case, where there is an actual conveyance, the land passes by it, under the old law, to C., and the use being also declared in favour of C., the statute (according to the above construction of it) declines to transfer the possession from C. to B.; while in the latter case, where there is a contract, without any conveyance at law, the statute operates to convey the land to C., but, in like manner, declines to pass it on from C. to B. The substantial use, thus arbitrarily excluded from the pale of the law, in deference to an idle form of words, was once more received into the bosom of equity. There B. was acknowledged as the rightful owner.

So that, by a very ready process, the legal estate may still be separated from the equitable or beneficial right. The things remain; the terms only are somewhat changed. The primary use, on which the statute does operate, retains, along with its new character of a legal estate, its ancient appellation of a USE; but the secondary use, on which the statute does not operate, is called, for distinction's sake, a TRUST.

statute.

As the principal operations of modern conveyancing, Condition of so far as it concerns freehold estates, are accomplished uses since the through the agency of uses, it is necessary to give them, at this stage of their progress, a patient examination, from which it will appear that, in consequence of the above determination relative to a use upon a use, they underwent a remarkable change, with respect not only to their final condition under the statute, but to their incipient condition under the instrument creating them.

That the construction thus adopted, though it may be Effect of the agreeable to the strictness of legal interpretation, mocked doctrine relative

to a use upon a

uses of their beneficial character.

CHAP. III. the reason and spirit of the statute, is apparent when we use, in depriving consider that, if, before the statute, upon a purchase of land by A., the conveyance had been made unto, and to the use of B., to the use of A., or unto B., to the use of C., to the use of A., neither B., in the first case, nor C., in the second, would have taken the beneficial interest, (i. e, the use,) which, being manifestly designed for A., the purchaser, would have vested in him, while the legal estate would have resided in B. As there existed no third species of ownership-the legal estate and beneficial right constituting the entire property-and as C., in the second case, was not destined either to possess the land, or to enjoy the usufruct, he would, before the statute, have taken nothing. So when, at this day, the legal estate is fixed in B., in trust for C., in trust for A., equity regards C. as a cipher, and A. as the true object of the trust, on the very same principles which, before the statute, would have induced equity to give him the use. Yet, strange to say, a statute passed for clothing uses with the legal dominion is made to confer that dominion, in the first example, on B., who has no use, and, in the second example, on C., who has not a shadow of either use or estate. To point the argument-on what was the statute meant to operate?-USES. What were uses?-beneficial rights. Has B. or C. any beneficial right?-clearly not. Does the statute operate in their favour?-we have seen that it does. Why so?-because the law affirms that the use is limited to them. But does equity permit them to enjoy beneficially?-no: equity affirms that the usufruct belongs to A. Then it follows that the law, in quest of something which on examination proves to be really nothing, misses the substantial use at

which the legislature aimed, and that law and equity CHAP. III. palpably contradict each other.

be created

Neither before nor after the statute was there any Uses and trusts may Before the statute, the sole by any form of magic in the word USE. question was, to whom, in point af conscience, the bene- words. ficial right belonged. That right, and the use, were convertible terms. The word use, although commonly employed to describe the equitable interest, was by no means necessary to create it. The use arose without any declaration where it was equitable that it should arise; it could not be raised by the clearest declaration where it was inequitable that it should arise. Equity would have been set aside if technical forms had been deemed of higher moment than good faith, and mere words stronger than conscience. Thus, if A., for a valuable consideration paid by B., conveyed land to C., without declaring any use, a constructive use arose in favour of B. On the other hand, if C. afterwards conveyed the land expressly to the use of a purchaser, who bought with notice of B.'s equitable right, no use arose in favour of that purchaser. So, after the statute, it was deemed equally unessential to pursue any particular form of words in order to create a use on which the statute would operate. Whether the land be conveyed to A., to the use of B., to the use of C.; or to A., in trust for B., in trust for C.; or, even to A., in trust for B., to the use of C.;-it matters not: the result in each instance is the same. B., who, before the statute, would, as we have seen, have taken nothing, becomes, by force of the statute, legal owner of the land, while the beneficial enjoyment belongs to C. Hence a trust in name may be a use in effect, and e converso. As the legal expounders of the statute were, therefore, use within the equally indifferent to words and things-to the fact that

How a limitatained to be a

tion is ascer

statute.

CHAP. III. no benefit is designed for B., and to the form of limita tion-the student will be apt to ask, by what criterion they proposed to ascertain the existence of the use,-a matter not to be judged of either by substance or by sign? The truth is, that they read short, stopping at the limita tion to B., and not recollecting that all the words of a sentence cannot be delivered at once. They saw, first, a conveyance of the land to A., then, a limitation to B., which must be a use or nothing, and without patiently waiting the result of the completed sentence, which would have made it apparent that the limitation to him was nothing, (the use being really designed for C.,) they invested this shadow of equity with the legal sub

Uses beneficial, uses not beneficial, and trusts,

stance.

In order, therefore, to understand the phenomena exhibited by modern titles, we must consider the property distinguished. in land as having, with reference to the modifications of which it is susceptible, a quadruple aspect, presenting, first, the primitive common law estate; secondly, proper uses, (i, e. beneficial interests; designedly within the statute;) thirdly, improper uses, (i. e. forms of beneficial interests, constructively within the statute;) and, fourthly, trusts, (i. e. beneficial interests, neither recognized by the common law, nor reached by the statute.) Where land is conveyed by feoffment or other common law assurance to A., to the use of B. a purchaser, A. has the common law estate, and B. has the proper or beneficial use, that is, the very use contemplated by the framers of the statute. Where land is so conveyed to A., to the use of B., to the use of C. a purchaser, A. has the common law estate, B. has the improper or nominal use, not contemplated by the framers of the statute, but generated by the conceit of its expounders, and, finally, C. has the

On limiting a use not beneficial, a trust arises.