And owing to this latter circumstance in particular [it happened that, during our long wars in France and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had of securing their estates from forfeiture when each of the contending parties, as they became uppermost, alternately attainted the other. Till about the reign of Edward the fourth, before whose time Lord Bacon remarks that there are not six cases to be found relating to the doctrine of uses (s), the courts of equity began to reduce them to something of a regular system.]

With respect to the kinds of property that might be the subject of a use, we may observe, in general, that all corporeal hereditaments, whether in possession, remainder, or reversion; and many that are incorporeal, for example, rents and advowsons, might be granted to a use; but not those of which the use was inseparable from the possession and quæ ipso usu consumuntur, as ways, commons, and the like (t).

The manner in which a use was commonly created was as follows. The owner, or actual tenant of the land, conveyed it by feoffment, upon the trust or confidence, which often rested upon merely oral agreement (u), that the feoffee should hold the land to the use of some third person, or it might be to the use of the feoffor himself(x). The effect of this transaction (as already in part explained) was, that the legal scisin or feudal tenancy of the land became severed from the substantial and beneficial ownership or use; the former being vested in the trustee, otherwise called feoffee to uses, the latter, in the person to whose use he held, who received the appellation of cestui que use. Of these divided interests, that of the feoffee alone obtained protection in the court of common law; where he was con

(s) Bac. Read. Us.

(t) 2 Bl. Com. 330; 1 Sand. Uses, 70, 2nd ed.; 1 Cruise, Dig. 408; W. Jones, 127; Ld. Willoughby's case,

per Doddridge, J., Gilb. Uses, 485, 3rd ed. by Sugd.

(u) 1 Sand. Uses, 17, 2nd ed. (x) 1 Cruise, Dig. 392.

sidered as absolute owner.

But a different doctrine was

maintained in the courts of equity, which treated cestui que use, on the other hand, as the true proprietor; and compelled the feoffee to account to him for the rents and profits, and to hold the land at his disposal.

Uses, however, might be created, not only by an express agreement or declaration, but by mere implication from the nature of the conveyance itself. Thus if a man made a feoffment in fee to another, without any consideration, equity would presume that he meant it to the use of himself; and would therefore raise an implied use for his benefit (y), unless he expressly declared it to be to the use of another, and then nothing was presumed contrary to his own expressions (2). And here we may observe, that uses thus returning by way of implication to the grantor himself, were called resulting uses (a). Uses also were capable of being raised in some cases upon mere contracts (b), without the formality of any conveyance; and this either expressly or by implication. For if a man in consideration of natural affection, covenanted, that is, contracted under the solemnity of a deed (c), that he would stand seised of his land to the use of some near relative named (d); or of a wife, actual or intended; a court of equity, even though no valuable consideration passed, would enforce the use, and treat the covenantor thereafter as a mere trustee for the party whose benefit was designed. So if a man had bargained and sold his land to another, (that is, agreed to sell it him,) for pecuniary consideration, but had made no actual feoffment or conveyance, equity would, under such circumstances, consider the estate as

(y) 1 Sand. Us. 68, 2nd ed.; Vin. Uses, F.; 1 Cruise, Dig. 442, 446, 450; Gilb. 118.

(z) 2 Bl. Com. 330.

(a) 1 Cruise, Dig. 442, 446, 450;

2 Bl. Com. 335; Doe v. Rolfe, 8 Ad. & El. 650.

(b) 1 Sand. Us. 118, 2nd ed.; ibid. II. 50; Chudleigh's case, 1 Rep. 139 b.

(c) 2 Bl. Com. 304.

(d) Gilb. Uses, 93; Sugd. Introd.

to Gilb. xlvii.

belonging to the party who had paid the money; and would consequently hold the bargainor to be seised of the land from thenceforth, to the use of the bargainee (e).

No contracts of either kind, however, would be enforced in equity, unless founded upon the particular species of consideration above described as appropriate to the case; a gratuitous engagement, in favour of a stranger, being insufficient to raise a use.

In general all persons were of capacity thus to become trustees, and to hold to a use (f). There were, however, some exceptions. For persons attainted and aliens were for this, (as for all other purposes,) disqualified from holding land (g); and the doctrine was also established, [that neither the king nor queen, on account of their dignity royal (h), nor any corporation aggregate, on account of its limited capacity (i), could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust.]

As the feoffee or person seised to uses was considered at the common law as absolute owner, his estate was of course subject to all the incidents which would attach to one held for his own benefit. It would devolve to his legal representative at his death, and might be aliened, or forfeited by his act while living; or become subject to execution for his debts, or to escheat for want of an heir. His wife also would be entitled to dower; and where the feoffee was a married woman, her husband might claim an estate by the curtesy (k).

It is to be observed, too, that persons claiming under titles

(e) 2 Sand. Us. 50, 2nd ed. But the precise technical words of bargain and sale, or covenant to stand seised, are not essential, if there are words tantamount. (Treat. on Equity, book ii. chap. 3, s. 1.)

(f) 1 Sand. Us. 62, 2nd ed. (g) Ibid. 65.

(h) 2 Bl. Com. 330; 1 Sand. Us. 65, 2nd ed.

(i) Ibid.

(k) 1 Sand. Us. 75, 76, 2nd ed.; 1 Cruise, Dig. 403; 2 Bl. Com., ubi sup. As to his estate being liable to execution for his debts, see Gilb. Us. by Sugd. 3rd edit. p. 15.

derived like these, from the feoffee, were in some cases entitled to hold for their own benefit, free from any equitable obligation to perform the trust. Originally, indeed, it was held that the Court of Chancery could give relief only against the person himself in whom the trust was first reposed, and not against such as might derive title through him. [This was altered in the reign of Henry the sixth with respect to the heir (1); and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use (m). But a purchaser for a valuable consideration without notice,] or a creditor obtaining execution (n), [might hold the land discharged of any such confidence; and so if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned,-were liable to perform the use: because they were not parties to the trust, but came in by act of law (o): though doubtless their title in reason, was no better than that of the heir.]

The capacity of becoming cestui que use, was even more extensive than that of becoming trustee; and it may be sufficient to observe generally, that all persons competent to take a conveyance of land might also take an interest in it by way of use (p).

The nature of this interest, constituting as it did a new sort of ownership, wholly distinct from the common law or legal estate, to which alone our attention was formerly directed, demands a particular consideration. It was in its nature so exclusively equitable, that the courts of common law accounted the cestui que use, if out of possession, as a mere stranger to the land; if in possession, as no more

than a tenant at sufferance. They consequently allowed no effect to his alienation or demise of the land, if made without the consent of the trustee; and they held it not liable to forfeiture for his default, nor to execution for his debts (9). In equity, however, the properties or incidents of this kind of ownership were in a great measure assimilated to those of a legal estate; while on the other hand they were settled, in certain respects, upon principles more advantageous to the owner. These properties were principally as follows:1. Contrary to the course of the common law with respect to freehold estate, uses even for life, or for a greater interest, might be created or assigned [by secret deeds between the parties, or might be devised by last will or testament (r); for as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary,] or in its nature applicable to the case. 2. As a use was exempt from the restrictions of the common law as to the manner of creation or transfer, so it enjoyed a similar freedom as regards the modification of the interest itself. Thus uses might not only be in possession, reversion, or remainder, (vested or contingent,) according to the fashion of legal estates; but might also be limited for future interests not corresponding with the legal idea of a remainder. When in the nature of estates in possession, reversion, or vested remainder, they were called uses in esse; in other cases they were described as uses in futuro, contingent uses, or uses in possibility (s). 3. A use was not, as before remarked, subject to forfeiture (t); and did not escheat upon attainder, or other defect of blood; [for escheats and the like are the consequence of tenure, and uses are held of nobody. 4. Again, no wife could claim dower, or husband an estate by curtesy, of a use (u); for no trust was declared

(q) 2 Bl. Com. 331; 1 Sand. Uses, 73, 74, 2nd ed.

(r) Bac. Read. Uses, 312, 308; 1 Sand. Uses, 72, 2nd ed.

(s) Chudleigh's case, 1 Rep. 136 b, 121 b; Lovies' case, 10 Rep. 85 a;

Bac. Read. Us.; Bac. Ab. Uses, (G).

(t) Vide sup. p. 363.

(u) Vernon's case, 4 Rep, l. b; 2 And. 75. As to dower and curtesy, vide sup. pp. 272, 269.