"'d tion of the courts of By this equitable train of decisions in the courts of The jurisdic law, the power of the court of Chancery over landed pro- equity." perty was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in no use could be limited on a use," the first place, that " and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a farther use to another person is repugnant, [336] 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 only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B., he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestui que use. And where A. bargains and sells for a pecuniary consideration to B. the legal estate by force of the statute passes to B., and the judges held that if there was a further limitation to the use of C., C. took nothing at law. Again; as the statute only mentions such persons as were seised to the use of the others, this was held not to extend to existing terms of years, or other chattel interests, whereof the termor is not seised, but only possessed; and therefore if a term of one thousand years already in existence be assigned by the termor to A., to the use of (or in trust for) B., the statute does not execute this use, but leaves it as at common law.h But this must be distinguished from the original creation of the term out of the fee. As where A seised in fee limits a term to B. for one thousand years, here there is a person capable of serving the seisin, and this will be an interest which the statute will execute. And lastly, (by more modern resolutions) where lands are given to one and his heirs, in trust to d Dyer, 155. e 1 And. 37, 136. f Tyrrell's case, Dy. 155. 244. Bacon, Law of Uses, 335; Jenk. h Poph. 76; Dyer, 369. i Gilb. Us. 80. Doctrine of trusts. 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.* Of the two more ancient distinctions the courts of equity quickly availed themselves. In the first two cases it was evident that B. was never intended by the parties to have any beneficial interest; and, in the third, the cestui que use of the term was expressly driven into the court of Chancery to seek his remedy: and therefore that court 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.' To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts: and thus, by means of this doctrine of trusts, to use the words of Lord Mansfield," a noble, rational, and uniform system has been raised, which is made to answer the exigencies of family and all useful purposes, without producing one inconvenience, fraud, or private mischief, which the Statute of Uses meant to avoid. It has been said," that trusts are now much the same as uses were before the statute. A use indeed, before the Statute of Uses was, as a trust is since, a fiduciary or beneficial interest, distinct from the legal estate, and so far the expression is correct: but though there is no difference in the principles, there is a [337 ] wide difference in the exercise of them. The courts of Rules as to equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mischiefs which made uses intolerable. The Statute of Frauds, 29 Car. II. c. 3, having required that every declaration, assignment, or grant of any trust in lands or hereditaments, (except such as arise from implication or construction of law,) shall be made in writing signed by the party, or by his written will; the courts now consider a trust estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed trusts. k1 Equ. Cas. Ab. 383, 384; 1 Sand. Us. 244. Doe v. Scott, 4 Bing. 507. 11 Hal. P. C. 248. m 1 Wm. Bla. 160. n See ante, p. 108. 1 Wm. Bla. 180; 1 Sand. Us. 266, 4th edit. by the same rules of property, and liable to every charge in equity, which the other is subject to in law : and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate unless by alienation for a valuable consideration to a purchaser without notice;P which, as cestui que trust is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the Statute of Frauds) to leases and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law; and it has recently been subjected to dower. It hath also been held not liable to forfeiture (except in the case of treason) nors to escheat to the lord, in consequence of attainder or want of heirst because the trust could never be intended for his benefit. The trust is usually called the trust estate, in contradistinction to the legal estate, and the person having the beneficial interest in the trust estate, the cestui que trust. The estate of the trustee is at law subject to all the incidents which attend the ownership of land, but he is compellable in a court of equity to convey the legal estate in such way as the cestui que trust shall direct; and when he becomes disqualified or is out of the jurisdiction of the court, or in any other respect incompetent to discharge the trust, the court will appoint some person to make the conveyance. It is to be further observed, that where an estate may take effect either by the rules of common law or by the statute of uses, it will take effect under the common law. Thus where lands are limited to A. to the use of A., A. will take by virtue of the common law," but if an estate be limited on A.'s seisin Use of the statute. to the use of B., then A. is in by virtue of the statute of uses, and B. takes an equitable estate." The only service, as was before observed, to which the statute of uses is now consigned, is in giving efficacy to certain species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only [338] ancient conveyance of corporeal frecholds. These conveyances, as we have already observed, are now principally adopted in the transfer of real property; and have nearly superseded the ancient mode of conveyance at common law, as will be more fully seen in the twenty-first chapter of this volume. Girland v. Sharp, Cro. Eliz. 382; Attorney-General v. Scott, Cas. temp. Talb. 139. CHAPTER THE EIGHTH. OF FREEHOLD ESTATES OF INHERITANCE. [103] i is. THE next objects of our disquisition are the nature and Estate, what properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant hath therein; so that if a man grant all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby." It is called in Latin status; it signifying the condition, or circumstance in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the To be consi quantity of interest which the tenant has in the tenement; three-fold secondly, with regard to the time at which that quantity of interest is to be enjoyed; and, thirdly, with regard to the number and connections of the tenants. dered in a light. the quantity First, with regard to the quantity of interest which the First as to tenant has in the tenement; this is measured by its dura- of interest. tion and extent. Thus, either his right of possession is to subsist for an uncertain period during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, months, or days; or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occa- Estates disions the primary division of estates into such as are free- freehold and hold, and such as are less than freehold. An estate of freehold, liberum tenementum, is an interest [104] a Co. Litt. 345 a; but see Derby v. Taylor, 1 East, 502, in which it was held that the insertion of the common clause of "all the estate," has not this effect when it follows a particular de- vided into less than freehold. |