both the common law and statute law are often found CHAP. IV. wanting, as it happens in the following instances: -: 1. If A. conveys to B. in fee, to the use of C. for life, and after C.'s death to the use of his unborn children in tail or in fee, C. may forfeit his life estate, and by that means cause the exclusion of his unborn children. 2. So, if A. conveys to B. in fee to the use of C. in fee, the wife of C. will be dowable out of the land;but the law upon this point is modified by a recent statute. (a) 3. Again, A. cannot charge the land at law with a gross sum of money;-at least, it will be found that legal machinery is but ill adapted to attain the object. Here neither the common law nor the statute of uses, nor both combined, will suffice. What, then, is our next resource?-EQUITY. As we had before employed the empty forms (b) of equity, (statute-uses,) so, still fruitful in expedients, we now call in its living principles. 1. We make A. convey the fee to B., to his (B.'s) own use, but in trust for C. for life, and after his death, in trust for his unborn children, in order that the rights of C. and his children, being purely equitable, may be exempted from the rules of tenure, and consequently from forfeiture; or, with a view to obviate the inconvenience of vesting the whole legal dominion in B., we make A. convey the fee to B., to the use of C. for life, and on the determination of C.'s life estate, then to the use of B. during C.'s life, in trust for C. and to preserve the subsequent contingent remainders, and after his (C.'s) death, to the use of his children in tail, with remainder to D. in fee. Now, if C. should commit a forfeiture, the legal dominion for the remainder of his life, but no longer, (a) Vide infrà, chap. V. (b) Vide suprà, 46. but which may be ultimately secured by resorting to trusts in equity. CHAP. IV. will belong to B., as a trustee for C., on whose death his (C.'s) children will succeed regularly to the legal ownership. If, indeed, B., the trustee, should also commit a forfeiture, the contingent remainder to the children would be defeated at law, but equity would compel him to make good the loss sustained by the children; nor would any person, deriving title under his malfeasance, and with notice of the trust, be allowed to retain the land against the children. Here it may be proper to apprise the student that forfeiture is not the only mode by which the life estate may be determined before the contingency happens. It is liable to be destroyed by surrender or merger. Thus, if the remainder to the trustees were omitted in the above example, C., by surrendering his life estate to D., before the birth of a child, or C, and D. by jointly conveying even by an innocent assurance, as a lease and release, to a stranger, (in whom the life estate and fee would coalesce,) before the birth of a child, might exclude the contingent remainder. So, if the ultimate fee, (the remainder to the trustees being omitted,) were allowed to result to A. the grantor, as reversioner, instead of being limited away to D., a similar conveyance made by A. and C., before the birth of a child, would produce the same effect. So, again, (the remainder to the trustees being omitted) if that fee were limited to C., the tenant for life, instead of D., then, although C.'s life estate and remainder in fee would not, by force of the limitations per se, coalesce, so as to exclude the contingent remainder, yet even an innocent conveyance, subsequently made by C. alone would prevent such remainder from taking effect. In each of these instances, the destruction of the contingent remainder would be the legal consequence of the absorption of the estate for life in the CHAP. IV. fee. When we speak of destroying a contingent remainder, we do not, therefore, necessarily contemplate a tortious act. The contingent remainder fails on the premature removal, by any means, of the supporting freehold. 2. So, on a purchase of the fee, dower is excluded by conveying the fee partly to the purchaser's own use, and partly (i. e. an estate of freehold in remainder,) to the use of another, in trust for him; the wife not being dowable unless the husband has the sole ownership of the legal inheritance, without any interposed estate of freehold. But this point is subject to the qualifications introduced by a recent statute. (a) 3. In order to charge the land with a gross sum, A. conveys to B. to his (B.'s) use in fee, or for a long term of years, upon trust to raise the money by sale or mortgage, equity enforcing the trust. These hints, assisted by the lights to be derived from Theory of a conreflecting on the historical sketch presented by the former veyance to uses. chapters, will enable an attentive observer to analyze the process of the most complex settlement. He will remark that, although the assurance is begun and ended by the act of sealing and delivering the parchment, yet, attending to the order indicated by the theory of the process, the first step conveys the land to an indifferent person, which, by the joint result of the common law and statute law, may be readily effected in a private chamber; the second step gives effect to the intention at law, so far as it is capable of legal effect, by moulding uses; but where the intention cannot be entirely or securely effected by such means, the third and final step confers the right of enforcing in equity what remains to be done, by the superinduction of trusts. (a) Vide infrà, chap. V. CHAP. IV. As to LEASE- may be created, but not transferred by means of uses under the statute. As to LEASEHOLDS FOR YEARS (leaseholds for lives being freehold interests):-The statute of uses has no application to the transfer, though it has to the creation of chattel interests. When A., the legal owner of a freehold interest, conveys the land to B., to the use of C. for a term of years, or makes a bargain and sale of the use to C. for a term of years, the statute draws the term out of the freehold interest, and vests it in C. at law. But the statute, having called the term into legal existence, leaves it to the disposal of the common law. If, therefore, C. afterwards transfers his interest to D., to the use of F., the legal interest in the term vests in D., while F. takes only an equitable right to the term. The consequence is, that the legal interest in a leasehold for years cannot be transferred, shifted, modified, and varied with the same facility as the legal interest in the freehold. For example, if a lease for years is vested in A., who wishes to vest it in himself jointly with B., then, as A. cannot convey directly to himself, he must assign the lease to a third person, C., who, by another deed, must re-assign it to A. and B.; but if the subject were freehold, A. might convey to B., to the use of A. and B., who would at once become joint owners of the legal estate. Again, if A. should wish to make a settlement of the lease, the difficulty of bending the common law to the various purposes of a family arrangement, would occasion the vesting of the whole legal ownership in trustees, and the objects of the settlement would, therefore, take only equitable rights; whereas, if the property were freehold, it would probably be sufficient to vest in trustees an inconsiderable portion of the legal ownership. conveyed, and tions suscep COPYHOLDS do not fall within the scope of these CHAP. IV. sheets; but we may shortly observe that by custom, con- As to copytrolling the will of the lord, the copyhold tenant,-ori- HOLDS-how ginally a mere slave bound to toil and to obey,-has of what limitaacquired an interest sure and reputable, though not, tible. indeed, in all respects so highly privileged as the freehold; that copyholds are unaffected by the statute of uses; that a copyhold tenement can be transferred at law only through the medium of a surrender into the hands of the lord of the manor, to the intent that the lord may admit into the tenancy the person in whose favour the surrender is expressed to be made, both the surrender and admittance being entered upon the courtrolls; that uses declared upon a surrender of copyholds are merely directions to the lord whom he shall admit; that such directions to the lord, though once received or rejected at pleasure as the humble petitions of the serf, are now recognized and enforced by the judicature as mandates of the lawful proprietor; that (notwithstanding some grave doubts (a) whether uses of copyholds must not conform to the rules of the common law) it is clear, upon principle and authority (b), that such directions may assume all the forms of future and shifting destinations, (including powers of appointment (c)), into which the freehold use is convertible; that the legal tenant may, as in the instance of freehold and leasehold property, be a trustee for the benefit of other persons, whose equitable rights, however, being incapable of tenure, are (a) Watk. Cop. 99, 197, 208. (b) Sand. on Surr. of Cop.; Boddington v. Abernethy, 5 Barn. & C. 776. (c) The King v. The Lord of the Manor of Oundle, 1 Adolph. & Ellis, 283; 3 Nev. & Mann. 484. G |