CHAPTER IV.

OF THE GENERAL STATE OF THE LAW OF REAL

PROPERTY.

CHAP. IV.

Practical result LET us now apply our attention more particularly to the of the preceding chapters.

Importance of distinguishing between the common law, the statute law, and equity.

general condition of the law, first endeavouring, though at the risk of repetition, to collect into one point of view the practical result, so far as the disposition of freehold and leasehold property is concerned, of the principles, enactments, and decisions, scattered through the preceding pages.

For this purpose we must carefully distinguish between the Common Law, the Statute Law, and Equity. From inattention to this distribution, the student is very apt to be confounded. He finds it laid down that a certain species of disposition is contrary to law, as, for example, a freehold interest to commence at a future period, or to take effect by displacing a previous interest, or, that certain consequences are inseparable from certain acts, as, for example, forfeiture from a feoffment by which a tenant for life assumes to pass the fee. Yet he knows that such dispositions are often made with effect, and that such acts are not always followed by injurious consequences; indeed, he is familiar at his own desk with the practical use and safety of the very things said to be impossible or dangerous. On reflecting, however, that many things, which cannot be done under the common law, may be done through the medium of uses under the statute, and that many things, which cannot be done in either mode, may be done through the medium of trusts in

equity, the apparent incongruities which clouded his CHAP. IV.. view are dispelled, and the system emerges clear, precise,

and harmonious.

HOLDS.

As to FREEHOLDS :-Supposing A. to be owner of the As to FREElegal fee, we proceed to consider, first, under what restrictions he lies at the COMMON LAW.

tainable at the common law.

objects unat

1. He cannot alter his own seisin of the freehold, as, Enumeration of by making himself tenant for life, or tenant jointly with another person, nor alter the descendible qualities of his own inheritance, as, by making himself tenant in tail, without conveying the fee to B. a third person, and taking a reconveyance of the partial or qualified interest --for a conveyance by A. to himself for life, or in tail, and then over to B., would be totally void, and a conveyance by A. to himself and B. jointly, or a conveyance by A. to B. for life, or in tail, and afterwards to remain to himself (A.) in tail, would be void as to A.; who, in the last example, would not acquire a new ownership as a remainder-man, but retain the remnant of his old inheritance as reversioner.

2. He cannot vest an interest in his wife (husband and wife being one person in law) without conveying to B., in order that B. may convey to the wife.

3. He cannot convey to B., at the same time postponing B.'s possession, as, to B. from Christmas next, or, from the death of A., leaving the fee in A. till the period shall arrive, or the event shall happen; though he may convey to B. till Christmas next, or during the life of A., and after Christmas next, or the death of A., to C. in fee, because in the latter case there is no suspense of the possession.

4. He cannot so convey as that several persons be

CHAP. IV. coming entitled at different periods of time may take as joint-tenants.

5. He cannot convey to an object not in being or not ascertained, as, to an unborn child of B., or to the survivor of B. and C., without giving a prior and immediate freehold interest less than the fee to a person in being and ascertained—and, if he limit such an interest, its determination, by the act of God or by the act of law, before the destination over has an existing or ascertained object, will render that destination incapable of effect.

6. He cannot, on conveying to B. an immediate freehold interest less than the fee, make a destination over in favour of any person, whether in being and ascertained or not, to take effect in possession at any other period than instantly on the determination, by the act of God or by the act of law, of the previous interest of B.

7. He cannot so convey the fee to B. as to render it liable, in any event, or at any period, certain or uncertain, proximate or remote, to shift, wholly or partially, from B. to another person.

8. He cannot, after conveying the fee to B., retain any right of resuming the possession, except such right of re-entry as the law implies for breach of a condition imposed by the conveyance, and which right he (A.) or his heirs alone can enforce; nor can he reserve to himself, or give to any other person, a power of revoking or varying the effect of his conveyance.

These prohibitions, which, in regard to common law conveyances, continue in full force at this day, are, for the most part, so many necessary consequences of the doctrines explained in the first chapter. According to those doctrines, the possession could not be suspended; the ownership could be changed only by a change of the

possession; the possession could not be changed without CHAP. IV. a conveyance, which required livery; a man could not deliver possession to himself, nor, having delivered it to another, recall it.

means of uses

under the sta

tute law.

But the various kinds of disposition above enumerated, The same objects shown to were clearly admissable as uses in equity before the be attainable by statute, and when the statute had brought within the pale of law the unorthodox forms of fiduciary interests, they became susceptible of legal effect. Under the common law, aided by the STATUTE LAW, (i. e. the statute of uses acting on the creatures of equity,) all these objects, and many others equally irreconcilable with the rigid principles of tenure, may be accomplished, and that by one assurance. Thus A., the supposed owner of the fee, may, by lease and release or feoffment, convey (and, till lately, might, by fine or recovery, have conveyed) the land according to any of the following modes:

1. To B. in fee, to the use of himself (A.) for life, or in tail, or to the use of himself (A.) and B. jointly, or to the use of B. for life or in tail, and then to remain to the use of himself (A.) in tail.

2. To B. in fee, to the use of his (A.'s) wife for life, or for any other estate or interest.

3. To B. in fee, to the use of C. from Christmas next, or from the death of A.

4. To B. in fee, to the use of the existing and future children of B. jointly, or to the use of any other class or number of persons jointly, without regard to their being capable of taking together at the same time.

5. To B. in fee, to the use of the unborn children of C., or to the use of the survivor of B. and C., without limiting any previous interest.

6. To B. in fee, to the use of B. for life, and after his

CHAP. IV. death, and one year, (thus leaving a chasm between the interests of B. and his successor,) to the use of C.

Of certain ob

7. To B. in fee, to the use of B. in fee, and if a given event shall happen (as B.'s death without having been married,) then to the use of C.

8. To B. in fee, to the use of B. in fee, and if a given event shall happen, then to the use of himself (A.); or to B. in fee, to any specified uses, subject to a power reserved to himself (A.), or given to C. a stranger, of annulling or altering the uses.

In all these cases, by the simple expedient of vesting the land in another person (B.), and engrafting upon his possession suitable limitations of the use, the intention is fully and at once effected. Although such limitations are conceived in the form of equitable rights, (for upon any other hypothesis they would be void, as contravening the strict rules of the common law,) yet they cannot be said to have even a momentary existence in that state, because the statute instantly draws the possession from B., and transforms those rights into legal interests in the land.

Thus, by the co-operation of the common law and the jects imperfectly statute of uses, much may be effected, but another agent

attainable either

at the common is still requisite to complete various arrangements of law, or by means

of uses under the daily occurrence.

statute.

We have shown, in the preceding chapter, that legal estates created by limiting uses, are, notwithstanding their equitable origin, attended, for the most part, with the incidents and consequences of common law estates; nay, that the strict rule of the common law, requiring the word heirs to give the fee, is applied to the incipient use. For this reason, among others,