'!«:<' ',1 < t t JTi'l ("l Olnrttf U Ham irl^nol Hthrary iMarHliaU iEquttg QloUertion (Sift of IE. 31. Matatfall, E.S. 1. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 346 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http ://www. arch i ve . o rg/detai Is/cu31 924084263346 THE LAW OF USES WILLIAM HANBURY JONES, ESQ. LONDON : V. AND K STEVENS, SONS, AND HAYNES, 26, BELL YARD, LINCOLN'S INN. 1862. LONDON : BRADBURY AND EVANS, PRINTERS, WHITEFRIARS. TO SIR ROUNDELL PALMER, HEK majesty's SOLIOITOR-GBSEBAL, WITH SINCEEB ADMIRAiON AND EESPBCT, AND Br HIS SANCTION, THESE PAGES ARE INSCRIBED. INTRODUCTION. When Sir "William Blackstone published his " Com- mentaries," there existed little to facilitate the know- ledge of Real Property. There were, it is true, " Coke upon Littleton," " Coke's Reports," Brooke's, Bacon's, and Viner's Abridgements, Perkins, " Hale's Analysis," " Sheppard's Touchstone," Treatises by Pigott, Bacon, and Gilbert, and the luminous judgments of Lord Hardwicke in Peere Williams, Atkins, and Vesey senior ; but these, although affording copious materials, were not method- ised, or reduced to system, and the task of obtaining a clear and comprehensive view of the law of property was most arduous.* " Blackstone's Commentaries," — certainly a wonderful performance, — was followed by the Notes of Hargrave and Butler to Coke Littleton, the Treatises of Mr. Fearne, and the labours of Watkins, Cruise, Powell, Butler, Sanders, Preston, and .Sugden, which further * The writer on referring to " Printed Cases and Opinions," has often marvelled at the intuitive perception and piercing discrimination of Mr. Booth. Lord St. Leonards seems his parallel. VI INTEODUCTION. reduced this chaos of materials into order ; formed as it were, codes by way of treatises on the several branches written on, afforded landmarks, and elucidated the science. There were also the inestimable presidencies of Lord Eldon and Sir William Grant in the Court of Chancery, the learning of Lord Kenyon, and the clear judgment and masculine intellect of Lord Ellenborough. But still, in the earlier part of the present century, the student was' sorely harassed ; he had to cope with the law of lineal and collateral warranties, that of discon- tinuance, the question of rights of entry or of action, whether the remedy was droiturel or ancestral, the doubts on making a tenant to the praecipe — as to single or double voucher, what particular fines were requisite, and as to their efficacy — constructive or implied revocations of wills, by remodification of ownerships, and numerous other intricacies, which have been happily swept away. The statutes passed in 1833, did much to relieve the law from these subtleties, and unnecessary difficulties. The Act for the abolition of Fines and Recoveries will ever reflect honour on. Mr. Brodie. The simple, lucid, and comprehensive enactments of the 8th and 9th Vic- toria, cap. 106, with the aid of the new Statute of Wills, have also greatly tended to amend the Law of Real Property. It would be but bare justice to acknowledge the great aid which has been rendered by Mr. Justice Williams' " Law of Executors," and the " Treatise on Wills," by the INTRODXJCTION. Vll late lamented Mr. Jarman, as also by Mr. Coote, in the only " Book on Mortgages," and by Mr. Lewin's careful " Treatise on Trusts." Duval or Christie, neither could find time to give to the profession any published result of his acute and powerful intellect. Hayes has taught well and fearlessly, but Francis and Samuel Turner have been silent. Why have we no printed memorial of their well-recognised knowledge % Why live only in tradition % Dart's " Com- pendium," considering who had preoccupied the subject, was no ordinary task, but ably has it been performed. Whoever desires to investigate the philosophy of English law should attentively peruse Herbert Broom's "Legal Maxims." It is a most instructive work, and shows diligent research. The industry of Joshua Williams is as untiring as it is successful in the advancement of legal learning. The judicious but too few efforts of Prideaux must induce regret that failing health compelled him to leave the metropolis ; but their reputation followed him, and the further exercise of his abilities has not been lost to the profession. The main structure of the English Law of Real Property remains, and must remain ; and Uses, and the statute reducing them into possession, cannot but form an essen- tial portion of the Law of Conveyancing. The Statute of Uses, as is well known, was enacted in the reign of Henry VIII. Its object, if not to extirpate, was to mitigate or remove some of the mischiefs from uses, VUl INTEODUCTION". as stated in its preamble. These uses had been devices ■which, however originally introduced, were not illaudably applied for the removal of many of the inconveniences from the narrowness and strictness of the rules of tenure and of alienation at the Common Law, much of which arose from the feudal system that had been introduced by the Normans. It is as a necessary consequence, that whenever a colony is planted, rules must be established to define the rights and duties, and regulate the conduct of the inhabitants. Those primarily would emanate from the will or with the consent of the original colonists ; but by the law of England, a British subject cannot abnegate his allegiance to the Crown ; he cannot seize an uninhabited island, and constitute himself sovereign thereof. Whenever British subjects form a plantation or colony, they carry with them the English laws. The sovereignty belongs to the King or Queen of Great Britain, and all those laws then existing in England, which are not merely the offspring of feudal tenures, subinfeudations, or custom,* or are not local, as the Poor Laws, the Turnpike Laws, attach. Among the laws so engrafted is the Statute of Uses. Thus, therefore, in Australia, where Saxon never trod, nor Norman ruled, the Law of Uses prevails, and the transfer of land, except where varied by the Colonial Law — as with us, often modified by our railway and other statutes— must prevail. * Kobiusou Crusoe could not have made Man Friday a copyholder. INTEbDUCTION. ix Uses, consequently, have an important effect on the transfer of land, not only in England or Ii-eland, but in other dominions of our Sovereign, with the exception of Scotland, the Isle of Man, and colonies acquired by conquest or treaty, where the old law is retained. Their practical working is so interwoven with the structure of English conveyancing, that, however by means of partial or particular legislation portions of its law may be abrogated or annulled, still the knowledge of its principles must be essential to a real property lawyer. It is true, that if a code were practicable, propositions might be extracted which would form rules, into the reasons whereof a practitioner need not inquire. But codification, so as to cope with the innumerable ramifica- tions of the EngUsh law, is impracticable. " There cannot be a finite rule for an infinite matter." The law of ana- logies must still prevail ; and uses will continue to guide or control the lawyer or to perplex the student. The principles of the Law of Uses are not many, and may be mastered with moderate attention ; and thus the knowledge of an apparently recondite and difficult subject be obtained. It is not for the well-versed lawyer these pages mainly are intended, but for the legal pupil, or solitary student. To /extract propositions from text-books, or the reports, however successfully accompHshed, is not alone sufficient : they must not in each instance, be abstractedly submitted X INTRODUCTION. without elucidation or explanation ; for that would be rather to dogmatise on, than to teach, the law. The " Ita lex scripta est" becomes a mere effort of memory, often without result. Far better adopt the maxim prefixed by Mr. Fearne to his admirable " Treatise on Contingent Remainders," — "Scire autem proprie est, rem ratione et per causam cognoscere." In pursuing that course the reasoning powers of the student are exercised, and his former impressions often corrected or confirmed. An intellectual charm is evoked in connecting the chain of reasoning, and gratification ensues on solving or com- prehending the problem. The legal fabric is thus raised slowly, possibly, but still surely, and gives the promise of endurance. Law has been somewhere termed a series of hidden analogies or unseen dependencies. An attempt will herein be made to evince the analogies, and to show the dependencies, upon the subject treated on. Perhaps this may expose the writer to the charge of tedious repetition, or prolixity ; but it seems better to incur that risk, than not to make the effort. The origin of this work was viva voce lectures on uses among other branches of conveyancing, deHvered to pupils, and by them kindly committed to writing, and since revised and corrected. The author does not venture wholly to ascribe to this mode of explanatory study the success of several pupils in the legal examinations. Mr. "William "Whifctaker Barry, one of them, obtained the first law studentship, and has INTRODUCTION. XI published an earnest and correct treatise on the "Statutory- Jurisdiction of the Court of Chancery." The writer's friend and former pupil, Mr. Pearce Peachey, who was lecturer for two years at the Law Institution, has edited a treatise of great merit on " Marriage Settlements." If these gentlemen have not yet obtained the full meed of their professional labours, let them bear in mind the Canning and the Harcourt mottoes. 4, Field Court, Gkay's Ihn. March, 1862. The "Commentaries" were first published in 1765. The times and the law are indeed changed since then. The veriest stickler, "stare super antiquas vias," will admit, somewhat for the better. Then there were kept in the yard of Newgate pickling-tubs for human heads, which were afterwards displayed on Temple Bar. In Dodsley's "London and its Environs, 1761," there is a print of that city gate with three lofty poles surmounted by heads ; and Boswell, in his " Life of Johnson," naiTates the classic remark by Goldsmith thereon. It must have been a pleasant sight for the Master of Osterley, when, in a May morning, he came to the sign of the Sun- flower, No. 1, Fleet Street. In 1777, Mary Jones, a young and remarkably handsome female, aged 19, whose husband had been pressed on the apprehended rupture on the Falkland Islands, whose goods had been seized for the debt of her husband, and who with her two children were turned into the streets, naked, destitute, and without food, went in desperation into a shop on Ludgate Hill, was seen to secrete a piece of coarse cloth, but on being detected replaced it on the counter. The Shoplifting Act, which denounced the penalty of death on the attempt only, was enforced against her ; and, notwithstanding the parish officers vouched for the truth of XU INTEODUCTIOK. lier statement, she was executed, and her baby, sucking at her breast, was taken from her when she went to be strangled. About the same time, nearly a score of wretched beings were "worked oflF," as Dennis would call it, by hanging opposite the debtors' door in Newgate, or on the site of Connaught Square, where Tyburn Tree formerly stood. So at that period in the House of Commons, when it was urged that there should not be any taxation without representation of the American colonies, a member, and King's Counsel, gravely urged, that because there had been a grant by the Crown of a province in North America, to be holden of the Manor of East or West Greenwich, (it matters not which,) the same was virtually in Kent, and represented by the members for that county. The Honourable Society of the Inner Temple refused to call Mr. Luders to the Bar, because he had written against imprisonment for debt. In March, 1789, a woman was sentenced to be burnt to death for coining. The stool whereon she stood was wrenched from under her, her neck dislocated, and the yet warm body fastened to a stake and burnt opposite Newgate. The peine forte et dure was enforced, and females were flogged. Even in our day, in Mary Ashford's case (1 B. & Aid. 405), the trial by duel was allowed by the Court of King's Bench, on appeal of murder. It has since been abolished. In these times there was no " Jurist," " Law Magazine," " Legal Reporter," " Law Times," " Solicitors' Journal," or other similar valuable periodicals, to awaken the legal mind on the passing legisla- tion and decisions. There are occasionally papers in the " Jurist " of great pith and discrimination, signed G. S., the initials of a gentleman of talent and learning. The profession is much indebted to such writers, now that the new subject matter of railways, joint- stock companies, tithe and copyhold enfranchisement, and many others are added as fresh subjects for legal doubt or difiiculty. CONTENTS. CHAPTER I. OF OWNERSHIPS AT THE COMMON LAW, IRRESPECTIVE OF THE LAW OF USES. 1. Mode of conveyancing at the common law. Land in posses- sion, in remainder, or reversion 2. Livery of land in possession 3. Grant of land in reversion or remainder . . . . 4. Writing or charter of feoffment only record of the transaction. It operated nothing 5. Eeasons why livery mnst be made, or grant take effect in- 6. An intended future feoffment or grant must have left the land with the owner 7. A feoffment or grant i/n futwo also contrary to the policy of the common law 8. This is stiU the law 9. A condition at common law could not be for the benefit «f a stranger . . . . 10. Jealousy against assignment of rights of entry or action 11. Instances where as the condi- tion could not be in the first instance given to a stranger, it could not by circuity . . 12. 13. Further explanation why a grant in fuiwro could not be made of a reversion *. i*. il. ib. PAQB 14. This therefore prevented an in- terval between a particular estate and remainder . . 5 16. But a, remainder could be limited in the alternative of two events . , . . 6 16. But ad interim the fee would ■have remained subject to the particular estate in the owner ib, 17. This fee simple was grantable subject to the contingency . ib. 18. This the doctrine of Mr. Feame. Mr. Preston held otherwise . ib. 19. As to the livery, where first estates for years, if a vested estate, to take effect in re- mainder. Livery to termor . ib. ,20. But if the fee to be limited in contingency expectant on the term, the livery would be void. This the rule — that an estate of freehold must support a con- tingent remainder . . 7 21. Freehold could never be put m futuro by act of the paiiy . ib. 22, 23. Mr. Feame's and Mr. Pres- ton's reasons . . . . ib. 24. Inconvenience of this strict- ness 8 25. Which led to the continuance of uses ib. XIV CONTENTS. CHAPTER II. OF USES BBFOEE THE STATUTES RELATING THEBETO.- 1. Introduced by the olerioal chan- cellors for the Church. Appli- cation thereof ignored at law , 2. Properties of the use. Mere right an assignable fee, with- out words of limitation, not escbeatable or forfeitable, ex- cept by express enactment de- visable ..... 3. Instance and effect of its opera- tion ..... 4. Under covenants to stand seised 5. Implied under contract by bar- gain and sale . . . 6. 7. Unlimited nature thereof. Subsequent alteration . 8, 9, 10. Nature and property of the use did not charge the land, but affected the owner with privity . . . . 10 ib. ib. 11 11. Privity of estate 12. Privity of person touching the estate . . .' . . 13. Eightful ownership. Nature of use, Purchaser for ' value without notice 14. Persons not bound by the use. Disseisins, &o. . . ' . . 15. Lord by escheat. Tenant by curtesy in dower . 16. Purchasers for valuable consi- deration without notice of the use . . ... 17. Interference of the Court of Chancery .... 18. Where it would not interfere . 19. Inconvenience of this divergence of legal and equitable owner- 12 Ab. la ib: ib. 14 ib. ib. 15 1 ElOUARD III. CHAPTER III. THE STATUTES OF USES. . 16 I 27 Henry VIII. . 16 CHAPTER IV. THE STATUTE OF ENROLMENTS. 27HEH]iY VIII. Cap. 16. The Statute of Uses executed every use, whether on a bar- gain and sale or covenant to stand seised, or conveyance operating by transmutation of possession . . But as bargains and sales were contracts, and might be merely oral, there would thereby have 20 passed an estate without deed, livery, or attornment . . 3. Reason, therefore, for the Sta- tute of Enrolments, and sum- mary of its enactments . 4. Covenants to stand seised, ne- cessarily being by deed, not within the mischief of the statute 20 21 CONTENTS. XV CHAPTER V. ON THE SCOPE AND EPPECT OP THE STATUTE OP USES. 1. First impression of the Judges that uses were to be extin- guished, bnt corrected on sub- sequent consideration . 2. -lustances where uses were anni- hilated ..... 3. The statute does not give larger legal* estate in the use, than there is. seisin to supply same 4. 5. Instances thereof 6. Uses not executed on a posses- . sion for jeai-s 22 i5. 23 a. ib. 7. But a term of years raisable by limitation of use . 8. Privity of seisin to the use. No use upon use . . . . 9. Instances thereof 10. Bargain and sale to one to the use of another . . . 11, 12. Consequences of inattention to the rule, that there cannot be a use of a use . 18. Further instances thereof . . 24 ib. 25 ib. 26 CHAPTER VI. DISTINCTION ON OWNERSHIPS BEPORE AND AFTER THE STATUTE. 10. Mode by which an heir might take by purchase, by feoffment, and re-infeoffment, &c. . . 30 11. This cii'cuity needless since the Statute of Uses . ... 31 12. Alternative in the law that heir might take as purchaser, by 3 Will. 4, c. 106, s. 3 . . ib. 13. Main objects of the Statute of Uses, and new results thereof ib. (1.) May be use of freehold «■» ftUuro . . . . . 32 (2.) One estate defeasible by another .... ib. (3.) Priority of estates may lie changed . . . . ib. (4. ) Persons taking it several times may be joint- tenants . ib. (5.) Estate of freehold may determine without entry . . ib. (C.) New estate descendible as land of which use determined tj. Explanation of lastproposition ib, 14. Cestui que use before statute had no legal right in or to land ib. 1 Preliminary inquiry 28 2 Bules at the common law irre- spective of uses . . . ib. 3 Seven examples of these rules : — (1.) Freehold could not be placed infaluro ib. (2.) Livery or grant defea- sible only by condition . . ib. (3.) Condition must have de- feated whole estates conveyed . ib. (4. ) Benefit of condition could not be for strangers ib. (5.) No feoffment or grant to wife ib. (6.) Qi-antor could not take a particular estate . 29 (7. ) Could not make his heir a purchaser . . . . ib. 4. Eeasons for or causes of 1st, 2nd, 3rd, and 4th rules ib. 5. As to 5th rule , . . . ib. 6, 7. As to the 6th rule. Discus- sion on policy of the rule ib. 8. Analogy to rule in Shelley's case 30 9. Reasons for the same . . . ;6. XVI CONTENTS. 15. No escheat of use, but of land before statute 16. No necessity to construe uses before statute, according to the rules of tenure . . . 17. Nor why the trustee to the use should not have dealt with the land according to the use de- clared ..... 18. As to descent of use . . . 19. Difficulties of the commou law Judges on applying the pre- existing rules of tenures to uses after the statute . 20. Scope of 2nd section of the sta- tute ..... 21. How applied by the Judges 22. Difficulties as to the new owner- ships ..... Eesult of their decisions seem- ingly perplexed in result, but inevitable . . . . The duty of the Judges in con- struing such new ownerships . 25. And hence the double system of 23- 24 32 ib. ib. ib. 34 ib. ib. 35 common law and statutory ownerships . . . .35 26. Introducing conditional limita- tions, springing uses, &c. . 27. The conduct of the Judges dis- creet .... 28. Perpetuities avoided by con- struction of conditional fees, but enacted by the Statute de Donis . . . . . ib. 29. Effectof Taltarum'scase. Strictly no perpetuity at the common law 36 30. Such at least the opinion of Lord St. Leonards and of Mr. Preston. Doubt of Mr. Lewin ib. 31. The Judges adhered to the rules of the common law where pos- sible. Contingent remainders, conditional limitations . . ib. 32. Kule against perpetuities ap- plied to springing or future uses and conditional limita- tions . . . . , ib. CHAPTER VII. USES APTBE THE STATUTE. 1 . Every class of pre-existing use executed into estate according to the common law, if practi- cable. If not, then conform- ably to the ownership in the use . . . . . . 2. The various uses which existed at the time of the statute 3. As to present or immediate uses 4. Future or contingent uses . . 5. Essentials to the operation of the statute .... 6. As to seisin to the use, and herein of corporate bodies taking to or giving the use . 7. Capacities of grantors and gran- tees to uses . . . '. 38 39 ib. 40 ib. 41 8. As to the incapacity of or dis- claimer by grantees to uses . 9. Where grantee to uses deceased 10. Subject-matter for operation of uses ..... 11. Of matters which in themselves lay in user .... 12. There must be a use in esse 13. As to future uses and liability to escheat of seisin to the use . 14. As to destruction of use by al- teration of seisin, and herein of scintilla juris . 15. As to its qualities . . . 1 6. Its inconvenience and abolition . 17. Privity of seisin to use 41 ib. 42 ib. 43 ib. 44 ib. CONTENTS. XVU CHAPTER VIII. ON THE SEVERAL KINDS OF USES. 1. Uses divisible into express, im- plied, resulting, or remaining uses, future, springing, or shifting uses 2. Express uses . . . . 3. Implied uses .... 4. Resulting uses only on assur- ances taking effect by trans- mutation of possession 5. Instance thereof 46 ib. 47 6, 7. And results . . . . 8. For what ownerships resulting uses may be . . . 9. Explanation thereof . 10. Where uniting with estate exe- cuted to subsequent use 11. Difference of uses by resultaney, and by implication 12. Remaining uses PAflE 48 ib. 49 ib. ib. CHAPTER IX. DISTIfTCTION BETWEEN CONTINGENT REMAINDBES AND CONDITIONAL LIMITATIONS. Distinction between contingent remainder and conditional limitations, less material since 8 & 9 Yict. c. 106, s. 8 . . 54 Ilemainder created by same deed or compound assurance as particular estate . .55 Estate by one deed, and another subsequently by dis- tinct assurance, not particular estate and remainder . . ib. Essentials to validity of re- mainder to take effect eo instante, the particular estate determined and not to defeat the estate . . . . ib. Example of an attempted re- mainder after an interval sub- sequently to the determination of the particular estate . . ij. The effect of such an attempt . 66 Effect at common law of the remainder being intended to determine the particular estate ib. Previously to the statute such an interval might have exi3te,d on limitations of uses . . ib. 10. 12. 13. So a use limited quasi in re- mainder might have defeated the use previously limited . No rule of tenure infringed by such a construction of uses 11. Exposition of this first dis- tinction of the law of uses And on the second . Construction after the statute that all assurances should if possible take effect by the common law ; but where not then the ownership under the law of uses allowed . . . 15. Example and effect on the interval between the first and next succeeding limitation of the use Seaulting use Effect thereof .... Further explanation . . . 19. Destructibility of contingent re- mainders .... 20. Effect of the 8th section of the 8 & 9 Vict. i the law of uses. 1 2. .And on the second. 13. Construction after the statute that all assurances shmdd, if possible, take effect by the common law; but where not, then the ownership under the law of uses allowed. 14. 15. Example and eject on the inlet vol between the first and next succeed- ing limitation of the use. 16. Resulting uses. 17. Effect thereof . 18. Further explanation. 19. BestruetibUity of contingent re- mainders. 20. Effect of the %th section of the S 4; 9 Vict. c. 106. 21. State of the law previomly thereto. 22. As to assignments previously for vahtatle consideration of such rights. 23. Instances where a Court of Equity interfered or declined on attempted assignment of such rights, 24. Effect of the enattment 8 # 9 Viet. c. 106, J. 6. 1. Some attempt may now be made to explain the clistiuction between a contingent remainder and a con- CONTINGENT REMAINDERS AND CONDITIONAL LIMITATIONS. 55 ditional limitation ; although, since the enactment, 8 & 9 Vict. c. 106, s. 8, one material consequence — of the con- tingent remainder being destructible, while the conditional limitation was not so, before the happening of the contingency — no longer exists. 2. A remainder of the legal ownership must be created by the same deed or instrument as the prior particular estate, or by means of the same compound assurance, (although in several instruments,) as under a deed creating a power, and a subsequent appointment by virtue thereof or by will and codicil. 3. But otherwise, an estate for life or in tail created by one deed, and a subsequent limitation in tail or in fee by another deed, were not in the nature of particular estate and remainder, they were not parts of the same estate, through owing their existence to several liveries or distinct grants.^ 4. It was essential to the validity of a remainder, that it should take effect at the latest eo instante that the particular estate determined, and that there should not be any interval between the particular estate and the remainder. As also that the intended limitation by way of remainder, should not defeat the particular estate previously to the period for its natural determination. 5. There could not be an interval of time between the determination of the particular estate, and the day or event when the remainder was to take effect in possession. For instance, a feoffment or grant at the common law to A. for his life, and one year after his death to B. for life in tail or in fee simple, would, as before noticed, have ' And see the analogy as to copyholds, and the fee subject thereto descend or be where, by the custom, the admittance of devised, the admittance of the tenant for the tenant for life is that of the remainder- life is not the admittance of the rever- man ; bul if a life estate be first created, sioner. — Fearne's Posthuma, 105. 56 DISTINCTION BETWEEN CONTINGENT REMAINDERS been invalid, aa to the attempted remainder to B., for when the livery or grant was made to A. for his life, it determined, and could not operate further. There was not then hy such assurance any ulterior feoffee or grantee. 6. The land came back to the feoffor, or his heir, and so of a grant under similar circumstances, the freehold could not be in abeyance ; there would not be any person, during the suspense of the ownership, to answer to the precipe of strangers. To entitle B. to the fee simple after the interval, a new livery or a fresh grant, if a grant were feasible, must have been made. 7. It was also an essential, that the particular estate should not be determined in favour of the remainderman, before the natural determination of such particular estate. If the particular estate was to determine, that could only be by way of condition in defeasance of the livery or grant bringing back the land to the feoffor or grantor. If, therefore, land had been limited to A. for life, any attempt to pass the ulterior fee or any portion thereof, during A.'s life to B. in possession, would virtually be to limit the benefit of a condition to a stranger ; and see the coinmentaiy of Fearne on Bacon's Abridgement, Cont. Rem. 264. 8. But previously to the Statute of Uses, a feoffment or grant might have been made to H., giving him the common law seisin in fee, to the use of or in trust for A. for his life, and one year after A.'s death, to the use of or in trust for B. in fee. 9. So, a feoffment or grant might have been made to H. in fee, to the use of A. for his life, and if B. should return from Rome in A.'s lifetime, then immediately after that return to the use of B. in fee. 10. In each of these two last propositions, no rule of tenure or common law principle was infringed. H. as AND CONDITIONAL LIMITATIONS. 57 before observed, had the comniou law seisin in fee simple, and the laws of Tenures had not any application to the personal trust or confidence reposed in him. 11. In the first of these propositions, H. or his heirs would hold to the use of or in trust for A. during his life, and after his death, and until the expiration of the year, would hold to the use of or in trust for the feoffor or grantor or his heirs, and, after the expiration of that interval, then to the use of or in trust for B. in fee. 12. And in the second of such propositions no Rule of Tenure would be infringed by holding that the trust or confidence for A. during his life might be determined by B. coming from Rome previously to A.'s death, and that instanter, on such return by B. becoming entitled to the use in fee. 13. The Judges, as before noticed, after the Statute of Uses came into operation, determined that all assurances that were capable of operation for ownerships consonant to the Common Law, should be governed by its rules ; but where an instrument owed its effect wholly or partially to the Statute of Uses, and could not operate according to the strictness of the Common Law, then it might receive a construction conformable to the principles of uses, which existed before the statute. 14. And therefore, that although a feoffment or grant operating at the Common Law (and not by way of declara- tion of use), as to A. for life, and one year from his death to B. in fee, would be void as regarded B., as well sub- sequently to as before the Statute of Uses ; yet an assurance to H. in fee simple, to the use of A. for his life, and at the interval of one year from his death to the use of B. in fee, would be valid, although conferring through the medium of the statute an ownership unknown to the common law. 58 DISTINCTION BETWEEN CONTINGENT BEMAINDEES 15. There would in this latter instance pass by the statute instanter to A. an estate for his life, in like manner as if previously to the enactment thereof H. had made such a conveyance to A. for his life. But, as with the exception of such life estate, no present and immediate ownership was to he taken under the use, for that was not to commence until the lapse of a year from the death of A. ; the use or trust was not disposed of during that period, and the feoffor or grantor retained the same, as part of his former ownership or dominion, and he or his heirs would be entitled to the use during such period. In other words, there would have been a resulting use to such feoffor or grantor in fee simple, determinable at the end of the interval in favour of B. in fee.* 16. The statute as premised executes into legal estate every use, whether present, future, express, implied, or resulting, according to their respective plight, nature, or quality. Its operation therefore would be at law to give an estate to A. for his life, and after his decease, then the inheritance at law would remain with the feoffor or grantor. But then the question arose, what was its effect as regards the future use to B., in fee simple, to arise after the lapse of the year from the death of A. % In the interval of that year the statute could not give the legal ownership to B., for he was not to have the same until the time was expired j and as in the meanwhile the legal fee simple would be in the feoffor or grantor in respect of the use thereof, which he had not intermediately disposed of, and as there could not be a fee simple after a fee simple, or two fees simple of the rightful ownership at the same time, consequently the use to B. remained un- executed into estate by the statute. That use was executory ; it was a fixed right to have the fee at a ' See note, post, p. 62. AND CONDITIONAL LIMITATIONS. 59 future period, but there was not any intermediate seisin inB. 17. But when the year after A.'s death had elapsed, then the statute determined the fee which, subject to the estate for the life of A., had been with the feoffor or grantor or his heir. Such fee, so determinable at the end of that period, ceased by force of the statute, without entry or claim on the part of B. or his heir. 18. It is true that if, when the statute first came into operation, a person who stood seised to the use was dis- seised, he must have entered and regained the seisin, in order to hold to the use, for until then the statute could not pass the seisin from him ; but since the statute, although the benefit of a future or contingent use may be released by the person entitled thereto — yet it is inde- structible except when and whilst subordinate to an estate tail.* In the latter instance it may be destroyed by such an act of the tenant in tail as would bar his own estate tail and limitations over ; for if he could bar a vested fee simple expectant on his estate tail, d, fortiori he may bar the right to such a fee, whether to arise by future use or otherwise. Indeed, should there be a future use to determine his own estate tail, he may, before the time or event at which such uses have effect, bar the same. 19. But, by reason that until a contingent remainder could vest a particular estate or at least a right of entry in respect thereof should continue, every determination of such particular estate before the contingency happened, as did not leave a right of entry, whether such determination resulted from the feoffment, forfeiture, surrender, or other ' It is not however clear that the covenant to stand seised. See 1 Sand, future use may not be destroyed where Uses, 151, 6th ed. ; 1 Sugd. Pew., p. limited under a bargain and sale or H, 8th ed. 60 DISTINCTION BETWEEN CONTINGENT REMAINDERS act of the particular tenant, prevented the contingency arising. This axiom is exemplified in the 5th chapter of Fearne's Contingent Remainders. 20. Now, however — by force of the enactment of the 8th sec. of the 8 & 9 Vict. c. 106, such destruction of a contingent remainder cannot take place, but still the same will determine if the contingency do not happen. 21. Neither the right to a future use nor this right under a contingent remainder was assignable at law^ but if the same was in respect of a fee simple ownership, it was descendible,'^ and devisable.^ So that if a person entitled under a contingent remainder should, before that remainder had vested, or a person entitled under a future use should, before such use was executed into estate^ have assumed to convey the land subject to such con- tingency, or to such future use, nothing would have passed at law by this extended conveyance. 22. When the contingency happened, or the period came, which was to execute the future use into estate, then a new conveyance must have been obtained from the intending alienor, his heir or devisee. And if the heir or devisee, who had thus obtained the legal ownership, declined to convey the same, then a Court of Equity would have compelled him to make such conveyance, if the pro- posed alienee was a purchaser for valuable consideration, hut not otherwise; and hence the rule formerly laid down, that a contingent remainder, or future use, was not assignable at law, although it was in equity for a valuable consideration.* 23. But this further consequence ensued — that as a Court of Equity never interfered against a purchaser for ' Weale t. Lomer, Pollexfen, 54. ' Sdwyn v. >9elwyn, 2 Burr. 1131. = Woo^e cage, 2 Roll. Rep. 15 ; Chad- ■• Wright v. Wright, 1 Ves. sen. 409. legh's case, 1 Co. S9 a. AND CONDITIONAL LIMITATIONS. 61 valuable consideration without notice — should the person who had acquired the legal seisin, by means of the con- tingent remainder having vested, or in right of the future use being executed into estate — have conveyed for valuable consideration, without notice of the first assignment — the estate would pass at law to the second alienee, and he would have equal equity with the first alienee, and a court would not interfere against him. 24. At the present day, by the 6th section of the above mentioned statute 8 & 9 Vict., a contingent or executory interest is made assignable by deed, that is, the assignee is put in the place of the assignor, yet no legal estate passes until the contingency happen, or the period for executing the use arrives ; but upon such contingency happening, or period arriving, instead of another conveyance being requisite from the alienor, his heir or devisee, the seisin will be in the alienee, his heir, devisee, or assignee, by deed. 62 DISTINCTION BETWEEN CONTINGENT REMAINDERS NOTE. In a standard work of acknowledged merit, 1 Sand. Uses, 142, 5th ed., this passage will be found : — " Thus if a man covenant to stand seised to the use of the heirs of his own body, or to the use of another after his own death, or if he bargain and sell his lands after seven years ; in each of these cases the grant is good, and until the event takes place the use results. But in conveyances, operating by way of transmutation of possession, it is necessary that a present seisin should be transferred in order to serve the resulting use. Thus, if a feoffment or case and release be made to J. S. and his heirs, to the use of J. S. and his heirs, to commence four years from thence or after the death of the grantor, the limitation of the use to J. S. is good, for during the four years, or the life of the grantor, it will result and he executed." With every respect, and no one had more, personally or professionally, than the writer for Mr. Sanders, there is an inaccuracy in the proposition " if there be a bargain and sale of lands after seven years the use results." It is submitted that there could not be any resulting use in that instance ; the bargainor would not part with the seisin. There is a remaining use ; nor is this a mere verbal dis- tinction, for independently of this incorrectness of defini- tion, important consequences might arise on the difference between a remaining and a resulting use, as Mr. Sanders himself points out, p. 151, ib., and see Sugd. Pow. p. 445, 8th ed. If the bargainor or covenantor did not provide that the use shall arise until a future day, he mtist neces- sarily retain the seisin, and the use thereof in fee, also until that day. And again, in p. 144, Mr. Sanders observes: — "In AND CONDITIONAL LIMITATIONS. 63 Davies v. Speed, 2 Salk. 675, the Chief Justice held 'that a feoffment to the use of A. and his heirs, to commence four years from thence, was good as a springing use, and that the whole estate remained to the feoffor in the mean- time ; so it is, if it were to commence after the death of A. without issue, if he died without issue in twenty years.' This doctrine is assumed by others ; but it does not appear to have been considered with any degree of attention. Bacon (63) expressly says, ' If I bargain and sell my land after seven years, the inheritance of the use only passeth ; and there remains an estate for years by a kind of sub- traction of the inheritance ; ' and this seems to be the proper construction of the statute." The inference from this would be, that Mr. Sanders considered there was a remaining use, and a consequent term of seven years on the bargainor. It is however sub- mitted that whether the future use be limited by a bargain and sale, or covenant to stand seised, leaving the seisin in fee, ad interim, with the bargainor or covenantor — or, on a conveyance, operating by transmutation of possession — as on a feoffment, &c., to A. and his heirs, to the use of B. and his heirs after the end of seven years — in the first instance, the undisturbed seisin and the use thereof, in fee simple remains with the bargainor or covenantor, and in the latter instance, the resulting use is in fee defeasible at the end of the seven years, by a springing or future use in favour of B. in fee simple. The intention was not to part with the use of the fee until the seven years were passed. When the feoffor, &c., conveyed the seisin to A. and his heirs, we have a right to assume that he, the feoffor or grantor, had the seisin, and no other person had the use thereof in fee ; he parted with the whole common seisin in fee to A., but the use of the fee was not to pass to B. until seven years had expired. It would be a legitimate consequence that ad interim the use 64 CONTINGENT BEMAINDEES AND CONDITIONAL LUtlTATIONS. of the fee not being limited away remained with or resulted to the feoflfor, &c. ; Mr. Preston evidently so considers in 1 Absts., 105. And the doctrine in equity, that the trusts of an attendant term for say five hundred or one thousand years, shall be for the real and not the personal representative, must apply to the benefit of the use for the interval of the seven years. The duration of the tei-m, whether for seven, twenty- one, or five hundred years, cannot alter the principle. The intention was only to give the use of the fee to B. from a future day, and there was not any superadded intention ad interim to convert the ownership of the feoffor into a chattel interest, and to disinherit the heir in favour of the personal representative. The rule appears to be this. Whenever a use is undis- posed of in presenti, it remains or results in fee simple, with two exceptions. First, where the use is to arise on the death of the bargainor, covenantor, or feoffor, &c. There, from necessity, there cannot be any resulting use of the fee simple, for as the future use is to arise on the death of the covenantor, &c., no fee could result or remain, for the heir or devisee could not take. The second exception is where the covenant, bargain, and sale, or feoffment, &c., is to the use of heirs special of the covenantor, &c. There a general fee could not result defeasible on death by a special heir, for no general fee simple could descend, and consequently there is an implied or resulting estate tail. But now that under the 2nd sec. of the 8 & 9 Vict. c. 106 — the immediate freehold lies in grant, as well as in livery — the assurance, by bargain and sale or by covenant to stand seised, has become obsolete — and, the distinction is no longer of practical importance — but should be noticed on an attempt to treat the subject scientifically. CHAPTER X. ON A DEVISE TO USES. 1. AutJioHties tluit there may be such devise. 2. On death of devisee in testator's life- time. Suggestion of Lord St. Leon- ards for avoiding that difficulty. 3, 4, 5. Comments thereon. 1. It seems admitted by the concurrence of text- writers of the greatest eminence (see Sugd. Gilb. 356, note ; Butl. Co. Litt. 271 (b) note ; 1 Sand. Uses, 5th ed. 250, note ; 1 Jarman, 209) that, although the Statute of Wills was subsequent to the Statute of Uses, yet there may be a devise to uses which would be executed by the last men- tioned statute. 2. As Lord St. Leonards remarks (1 Pow. 171, 7th ed. ; p. 148, 8th ed.), it has been observed that the question, except in a few instances, is of very little moment. It may arise on a devise to A. and his heirs to uses, if A. should pre-decease the testator, as it might be urged that there is a lapse of the seisin to supply the uses, and they would not arise ; and therefore it is recommended (" Treatise on Powers," ui supra) that the devise should be at once to the uses intended. 3. But, in substance, this would seem a testamentary direction, that the testator's heir shall stand seised to the uses. It is admitted that, if in consequence of the death in the testator's life of the entailed devisee to the uses, the 66 ON A DEVISE TO USES, testator's heir took the seisin at law freed from the uses, yet he would by the Court of Chancery, be directed to convey to such uses. 4. There would not be any very great breach of prin- ciple for a Court of Law to decide that a devise to A. and his heirs, to uses, where if A. survived, the seisin would be instantly transferred from him, should in the event of his death in the testator's lifetime, be deemed equivalent to a direction that the heir thus, by lapse, taking the instantaneous seisin of the devisee, should be bound in Uke manner, to stand seised to the uses. 5. This construction would it seems remove the diffi- cutly, 1 Sugd. Pow. 7th ed. 1 74, whether a power was to operate at Common Law, or through the Statute. CHAPTER XL ON EESCTLTING USES, WITH REFERENCE TO DISPUTED QUESTIONS THEREON. 1. Fixed future me. Cestui que use has no estate or seisin until the use takes effect. 2. But the benefit thereof devisable or descendible^ and now alienable by 8^-9 Vict. C-. 106. 3. State of law previously to that enact' ment. i. Effect of such enactment. 5. Jndestructiiility of fixed or future springing or contingent use. 6. No resulting use to grantor where express limitation of the use far the whole period of his life. 7. Difference of opinion where limitation of the use to grantor for years. 8. Cases of .ddams v. Savage, and Maw- ley V. Holland. 9. Opinions tliereon of Butler, Sugden, Serjeant Hill., and Mr. Freston. 10. Cogency of remarks of Mr. Sanders. 11. Observations therein. 12. Opinion of Mr. Butler seemingly pre- ferable to that of Lord St. Leonards. 1. As before remarked, a future, a shifting or a springing use gave no estate or seisin until the day or event fixed for it to take effect. On a conveyance to A. and his heirs to the use of B. and his heirs five years hence, B. in the interval has a fixed and certain owner- ship, but until that time be expired, he has neither estate nor seisin. 2. If he die previously, the ownership may pass by his will, for it was devisable, and if he die intestate, it would devolve on his heir. But, previously to the 8 & 9 Vict. c. 106, sec. 6, taking effect, this future use could not be aliened, so as to give the alienee the legal fee when the day arrived. V 2 68 ON EESULTING USES, WITH REFERENCE TO 3. Had there been an attempted conveyance, the same might have been suppoi-ted in equity, by force of the contract, if for valuable consideration — and when the five years should have expired, then the alienee for value must have required an actual conveyance of the fee from A., or his heir — for without such conveyance, the fee would have remained with A. or his heirs, and B. would not have had any legal ownership. 4. But the 6th section of this last mentioned act having rendered a contingent, executory or a future interest assignable by deed, the result is that the alienee of the same, when the day or event shall have arrived, that was to give eflScacy thereto, will have the legal ownership, according to the intent of the assurance, without any further assurance from the alienor or his heir — but until that day or event he would not have the legal ownership any more than would his assignor. 5. Every future springing or contingent tise, except pro- bably in some instances, where limited by bargain and sale or covenant to stand seised-^or, where to uses — when expectant on, or posterior to an estate tail, seems inde- structible. For this reason, it must be seen, when such a use is limited, that it will take effect if at all, within the limit against perpetuities. Should it not, the use would be void — except when in the power of a tenant in tail — nor will the event save it. 6. But the use would not result to the grantor or feoffor for life, if there was an express limitation of the use which must embrace the whole period of his life. 7. A difference of opinion has been expressed, where there was a limitation of the use to the gi-antor or feoffor for years, whether there could be a resulting use to him for life, that would support a limitation to the use of the heirs of his body, that otherwise would be void as a con- DISPUTED QUESTIONS THEREON. 69 tingent remainder for want of a prior estate of freehold to support it. 8. The cases of Adams v. Savage,^ and Rawley v. Holland^ certainly decided that there could not be such resulting use, and consequently that the limitations failed. 9. These cases are cited and commented on, in Butler's Fearne,^ and Gilbei't on Uses, by Sugden, and the notes pages 119, 164, and in 1st Sander's Uses, 5th ed., p. 148, and note. Lord St. Leonards there, and in the 2nd section of the 1st chapter of the 8th Edition of Powers, (where he has recast these notes,) considers that the limitations being intended as remainders must fail, and that they could not operate by way of future use. Mr. Sanders, Serjeant Hill, and Mr. Preston were of opinion that the limitation to the heirs of the body was capable of taking effect by way of future use, and Mr. Butler — note, p. 42, Fearne — also thought that the use might result to the grantor for his life, notwithstanding that the term of years limited to him would be thereby merged. 10. The observations by Mr. Sanders, that Adams v. Savage and Rawley v. Holland, were decided previously to Gore v. Gore, 2 P. W. 28, have great force. 11. It may be fully admitted, that where a limitation can take effect by way of remainder, it shall not operate as a springing use ; but where, ab initio, it never could operate by way of remainder, it appears an arbitrary construction, that there shall be a resultancy of the use of the whole fee to the grantor, and thus entirely defeat the deed, rather than a resultancy of a life estate to him, merging the term of years in himself. 12. It is submitted, with the highest deference to Lord St. Leonards, that in consonance with the opinion of Mr. Butler, a use conferring an estate for the life of the ' 2 Salk. 679. '' 2 Eq. Abr. 753. ■' Page i'l. 70 ON EESULTINQ USES, ETC. grantor might result to him so as to create an estate tail in him by the rule in Shelley's Case, — or that if there could not be such resultancy by implication, as being contrary to the express estate for years — still the use to the heirs of the body could have arisen as a springing or future use. CHAPTER XIL SPRINGING, SHIFTING, OE SECONDARY USES. 1. These denominations indiscriminately applied^ but seemingly impossible to be accurately distinguished. 2. -4 shifting use in common parlance. 3. Incorrectness of distinction. Practical- ly a real shifting tise seems illegal. 4. Shifting use must operate within the limit against perpetuities. 6. Discussion of the complicated ques- tions thereon foreign to the present worh. 1. These denominations are often indiscriminately applied. It is impossible to distinguish accurately one class from the others, nor, as elsewhere observed, is the nomenclature of consequence. 2. What is termed a shifting use is in common parlance applied to a use that determines a limitation, or a series of limitations, and accelerates or substitutes some other. As, upon the omission to assume a name or arms, or on the succession to a particular estate, or on the refusal to settle a specified property. 3. But there the words " shifting use " only denote one result, viz., the passing of the property in another channel, as in truth is the effect of every future use, that arises under the exercise of a power or otherwise, in defeating or postponing a subsisting ownership. But a shifting use essentially would be such a use as Judge "Walmesley is reported in Corbet's Case, 1 Co. 87, to have said is void, for the law did not allow such fractions of estate — exempli 72 SPRINGING, SHIFTING, OR SECONDARY USES. gratid — & feoffment in fee to the use of A. and his heirs every Monday, to the use of B. and his heirs every Tuesday, and to the use of C. and his heirs every Wednesday, or it would be a use analogous to the trust that in Duffield v. Elwes, 2 Sim. & Sta. 544,* Vice- Chancellor Leach was inclined to raise by construction. First, vesting the land in an eldest son, then divesting the same on the birth of a second son, and afterwards on the death of such second son revesting the land in the eldest son — being in effect rather a dancing use than a shifting use. 4. The effect of a shifting use being to divest the pre- existing ownership, and the same not being defeasible except where subject to an estate tail, it is essential to its validity that it should take effect within the rule against perpetuities. 5. To enter into any discussion on the various and complicated questions which arise on these uses or on similar limitation by way of executory devise would be foreign to the purpose of this work. ' And aee Sngil. House of Lords, 300. CHAPTER XIII. ON THE LAW OF ESCHEAT, AS REGARDS EESTJLTmG USES. 1. Semlting use, consequence of limi- tation of 2 future use, but inter- inediate use declared. 2. Part of the original dominion of the grantor vested, liable to be divested. If future tfse on contingency that does not happen, the estate by the resulting use becomes indefeasible. S. Is alienable, devisable and descendible. 4. Future use may be executory. 5, 6. Material to consider whether there can be any escheat of a fee acquired by resulting tise and inquiry there- on. Semble that proposition that escheat cannot be of determinable fee does not decide tlie point. Question then whether the lord by escheat will be bozmd by the use. He would not before the Statute of Uses, and it seems would not since. 1. A RESULTING use, as before observed, is the con- sequence of such a future use being limited, as would be repugnant to the rules of Common Law. As, an estate of freehold to commence infuturo, either in the inception of the limitation of the legal ownerships — or leaving a hiatus between present ownerships, which may be executed into estate consonant to the "rules of the Common Law, and any time or event, when the future use is to take effect, — or defeating a prior particular estate before its natural determination, — and on such premature defeasance limiting a use to a stranger. 2. The resulting use is part of the original dominion of the grantor. It is vested, though liable to be divested. If the future use be limited on a contingency, that does 74 ON THE LAW OF ESCHEAT, not happen, then the estate arising under the resulting use becomes indefeasible. 3. The resulting use was an estate alienable, devisable and descendible at law. 4. But the future use is no estate, it is merely executory, and a right to have the land when the time or event arrives. 5. It may be very material to consider whether there is any escheat of a fee acquired by a resulting use that has been executed into estate on a conveyance operating by transmutation of possession, but is subject to be defeated by a future use : as, for instance, if there be a conveyance by A., seised in fee simple, to B. and his heirs, to the use of C. and his heirs at the end of five years, in such case, as has previously been submitted, there is not a resulting use mevelj for five years to A., creating a chattel interest in him, and which, whether the lands limited should yield a rental of £5 or £5000 yearly on the death of A., within the term, would give the lands to his personal, and not to his real representatives for the residue of the term ; — but there is, in truth, a resulting use in fee to A. determinable at the end of five years, and which on his death within that term would devolve to his heir or devisee, but might determine when the five years had expired in favour of C. or his real representative. 6. But suppose A., in such case to have died before the expiration of five years intestate and without heirs, the inquiry then would be, whether there is an escheat to the lord of the fee, and whether the fee thus acquired by the lord would determine, at the end of the five years, in favour of C. 7. It is submitted, that the proposition that an escheat to the lord cannot be of a determinable fee simple will not decide the point, unless it can be predicated that AS REGARDS RESULTING USES. 75 •where tenant in tail gives a base fee to one and his heirs so long as there are heirs inheritable to the intail, and the alienee dies intestate and without heirs, — then the lord should not by escheat take this base fee, or taking it should hold subject to its determination in failure of the issue inheritable to the intail. It is apprehended that the lord would take by escheat, but could not hold as against the person who would be entitled on the failure of the issue so inheritable. 8. The question must then be determined under another aspect, as whether the lord taking the seisin by force of the resulting use in consequence of the death intestate and without issue of A., would be bound as A. was by the use limited after five years to C. 9. Before the statute of 27 Henry VIII. it is well known that the lord having by escheat a seisin in fee limited to supply a use, would not be bound by the use. Is he now so bound, when he takes the seisin executed to a use that was determinable by a future use 1 It is considered on the principle of Burgess v. Wheat, if C. the owner of the .future use should have died intestate, and without heirs, within the five years, there would not have been any escheat of the use ; but in such case A. having taken the fee by resulting use determinable at the end of five years, would, in consequence of there not being any person to take through, or in right of C, thenceforth hold in fee simple, freed from its prior determinable quality. Shall not the lord taking by escheat the fee of A., so hold ■? Upon principle it would seem to be so, but there does not appear any decision on the point ; yet the author apprehends that the future use would take effect where limited on an assurance operating by transmutation of possession. CHAPTER XIV. OF EENTS CREATED THROUGH THE MEDIITM OF THE STATUTE OF USES. 1. ^8 to rents de novo expressly autho- rised by statute. 2. Rents de novo may he limited in futuro, if not infringing tlie rule against perpetuities, 3. Ment in esse not grantable in futuro ; but use may be declared thereof in 4. Effect of disentailing rent granted in tail, without limitation over, 5. Effect of grant of rent for greater ownership thorn the grantor has in the land. 6. Where estate in land enlarged. Rent 7. No escheat of a rent. 8. Bent in fee out of socage and gavel- kind, lands descendible according to common law. 9. W7iere intention to limit rent to several successively in tail, there should not be several successive grants thereof. 10. But a grant thereof in fee, and then an intuit thereof created. 11. Towers of distress and entry for recovery of rent. 12. Grant thereof generally not necessary since G. 2. 13. Sut statutory powers not equivalent to conventional. 14. Sow these powers are limited in ap- plication thereof. 15. And hence expediency of a term of years by way of additional security. 16. Ejectment may be mairttained by means of power of entry. 17. These powers pass at law with the rent. 1. Rents de novo may be created, as may rents in esse be limited, through the medium of the Statute of Uses. In fact that statute expressly provides for rents being conveyed to uses. 2. A rent de novo may be limited in futuro without any preceding estate of freehold, so as the event or period on which the rent is to arise, would not violate the rule against perpetuities. OP BENTS CREATED THROUGH THE STATUTE OP USES. 77 3. But a rent in esse cannot be granted in futuro, for there would not be any immediate grantee, but such a rent, if holden in fee, may be granted to A. and his heirs, to the use of B. from a future day, for there would be an immediate grant of the seisin of the rent ; it is the use thereof only that is in futuro, and in the meantime, the rent would result to the grantor in fee. 4. If a rent be granted to one in tail without re- mainder over, any disentailing assurance, purporting to be in fee, will in truth only pass to the alienee a base fee, that is a fee determinable on failure of the issue in- heritable to the intail, and which fee, of course, will deter- mine on default of such heirs. 5. If one seised of land for life, or for a determinable or defeasible fee, grant to another a rent for life or in tail or in fee, this rent would determine with the estate of the grantor. See 1 Brest. Estate, 1 7. And, so if tenant for life of land, assume to grant a rent in tail, these would give only a quasi intail thereon. 6. So if tenant in tail of land should grant a rent in tail, or in fee, to be issuing thereout, although such grant would have determined with the estate tail in the land, yet if the tenant in tail should enlarge his estate into a fee simple in the land, that would support and give validity to the prior grant of the rent. 7. If a rent should be granted in fee and through the bastardy of the grantee or alienee in fee thereof, or from any other cause there should be a failure of heirs to take the rent, that would not cause any escheat of the rent, since a rent although a tenement does not properly lie in tenure. 8. If a rent be granted to one and his heirs out of socage and also gavelkind land, the descent thereof will be to the common law heir, in fact the limitation of the 78 OP RENTS CHEATED THEOITGH THE STATUTE OP USES. rent, to the grantee and his gavelkind heirs, would be void. 9. If the intention be to hmit on the original creation, a rent to several successively in taU, it would seem that this cannot be accomplished by a conveyance of the seisin of the lands in fee, to uses giving the rents successively in tail for they would be distinct rents, and several owner- ships, and not portions derived out of one ownership, and an entire subject matter, and the second and subsequent attempted estate tail would be void as limitations, after an indefinite failure of issue, and not subject to be pre- viously barred. 10. But if the desire be to create such successive rents, then the grant must first be made of a rent in fee, and the grantee may subsequently create the successive intails therein, for they would be only modifications of a pre- existing ownership. 11. It is usual in limitations of rent charges to limit uses giving powers of distress and entry and perception of rents and profits. 12. It is sometimes said, that this express power of distress is not necessary since the enactments of the 4 Geo. II. c. 28. 13. That is so generally, but there may be an instance where subsequent statutes have given to common law re- versioners additional subject matter for their distress, as growing crops, &c. Unless there be an express power they cannot be taken.* 1 4. It must be borne in mind that this power of distress can only be exercised as to persons becoming entitled subsequently the limitation of the rent, as in the case of tenants, they 'are only answerable for the rents reserved • MUler V. Grten, 2 C. 4; S. 142 ; 8 Bingh. 162 : Johnmn v. PavJhner, Jnr. 1842, p. 100. OP BENTS CHEATED THROTJaH THE STATUTE OF USES. 79 under their leases, and a landlord cannot grant any power of distress against them. 15. In order to give the remedy for the rents reserved on prior leases, a term must be limited to a trustee, (in order to prevent any extinguishment of the rent in the land,) and this termor may pursuant to his trusts execute legal powers as reversioner by distraining for rents when ■ in arrear to satisfy the rent charge. 16. The powers of entry and perception of rents and profits in addition to the power of distress for securing the rent charge will enable the grantee thereof to make a lease quousque under which the lessee may enter and make a lease so as to maintain ejectment ; see Havergill V. Hare, Cro. Jac. 510. 17. These powers of distress and entry, and perception of rents and profits pass at law with the rent without the necessity of any express assignment of the same. On many of the propositions in this chapter, see Butler's valuable notes to Co. Litt. 271 B., 298 A., and 315 A. CHAPTER XV. POWEKS. 1. Fowert to give legal ownerships under the statute are future uses, and Tie- cessarily contingent until exercised. 2. Immaterial where powers introduced in the instrument, whether prece- dent or subsequent to the uses, to be defeated or postponed thereby. 3. JEivery power -Is virtiudly a power of revocation a/nd new appointment. 4. JExample on the power of appoint- ment in the usual uses to prevent dower. 5. Classijieatimi of powers by Lord St. Leonards. 6. That elassijieation and the chapters thereon seemingly according to the law asfo)'merly understood, 7. State of the law on the first publica- tion of Lord St. Leonards' treatise. 8. Reasons for tlie modern doctrine thereon. Q. Mode of considering the liability of powers to destruction, suspension, or release. 10. Every competent person may release or extinguish a benefit for himself wnder an ownership or power. 11. But cannot derogate from his oion act. 12. Principles since the abolition of fines and recoveries amd of tortious assu- rances. 13. Intention to abandon or release a power may be express or inferen- tial. 14. Sale of the estate of a tenant for life with power of leasing. 15. Contrasted instance of mortgage by such a tenant for life. 16. Effect of a mortgage where tenant for life has power to take fines, ^e. 17. Tenant for life with power of sale a/nd exchange should not thereby defeat his own act. 18. Where he has sold his life estate. 19. Where he has only mortgaged the 20. Result of tlie authorities according to Lord St. Leonards as to sales or mortgages by tenant for life with power of leasing, or by tenant for life with power of sale and ex- change. 21. Where mortgagee of tenant for life with power of leasing or with power of sale and exchange has not stipulated against the exercise of such a power. 22. Such a mortgagee subject to the rule caveat emptor. 23. 24. Reasonable implied effect of his nonstipulation against the exercise of the power. 25. No substantial injiutiee if the powers exercised where no stipulation to the contrary. 26. Reasons for that conclusion. 27. As to regittered judgments against tenant for life with power of sale and exchange. POWERS. 81 28. Qtiestion thereon on sale of the late Duke of Buckingham's estates. 29. Convenient to consider the law pre- viomly .5. Russell on Crimes, and Misdemeanours. -^Fourth Edition. By C. S GREAVES,' Esq., Q C, 3 vols, royal 8vo. Price '5L'\Ss. 6d. cloth. Smith's Mercantile Law. — Seventh Edition. By G. M. DOWDESWELL, Esq. Royal 8vo. cloth. Price l/.I6s. Smith's Lav/ of Contracts. —By the late J. W. SMITH, Esq. Fourth Edition. By J. 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