[for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives, which was the original of modern jointures (x). 5. Lastly, a use could not be extended by writ of elegit, or other legal process, for the debts of cestui que use ;] though the legal estate was liable to such execution for the debt of the legal tenant.

The state of things here described was, however, attended with a variety of inconveniences. A person in possession of the land as apparent owner, would often, in reality, be a mere cestui que use, and consequently no more than a tenant at sufferance in regard to the legal estate; or he might, on the other hand, be a mere trustee, the equitable ownership and the right to receive the profits residing in another (y): and as putting an estate into use was often a secret transaction, with which strangers had no means of becoming acquainted (z), they were in constant danger of being deceived as to the true state of the title. We cannot therefore be surprised at Lord Bacon's complaint that [this course of proceeding "was turned to deceive many of their just and reasonable rights. A man that "had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife "was defrauded of her thirds, the husband of his curtesy, "the lord of his wardship, relief, heriot, and escheat, the "creditor of his extent for debt, and the tenant of his "lease (a)." To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestui que use (b); allowed actions for the freehold to be brought against him if in actual pernancy or enjoyment of the profits (c); made him

66

66

(x) Vide sup. p. 278.

(y) Bac. Ab. Uses and Trusts, p. 83.

(z) 1 Sand. Us. 17, 18, 23; Preamble of Stat. of Uses.

VOL. I.

(a) Bac. Use of the Law, 153. (b) Stat. 50 Edw. 3, c. 6; 2 Rich. 2, st. 2, c. 3; 19 Hen.7, c. 15.

(c) 1 Rich. 2, c. 9; 4 Hen. 4, c. 7; 11 Hen. 6, c. 3; 1 Hen. 7, c. 1. BB

[liable to actions of waste (d); established his conveyance and leases made without the concurrence of his feoffees (e); and gave the lord the wardship of his heir, with certain other feudal perquisites (f).

These provisions all tended to consider cestui que use as the real owner of the estate;] and it being at length resolved to carry this idea into full effect, that celebrated Act was passed in the reign of Henry the eighth, which is [usually called the Statute of Uses (g), or in conveyances and pleadings, the Statute for transferring Uses into Possession. The hint seems to have been derived from what was done at the accession of King Richard the third; who having, when Duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But to obviate so notorious an injustice, an act of parliament was immediately passed, which ordained that, where he had been so enfeoffed jointly with other persons, the lands should vest in the other feoffees as if he had never been named; and that, where he solely stood enfeoffed, the estate itself should vest in cestui que use in like manner as he had the use (h). And so the statute of Henry the eighth, after reciting the various inconveniences before mentioned, and many others, enacts that, where any person shall be seised] of lands or other hereditaments (i) to the use, confidence, or trust of any other person or body politic, the person or body politic entitled to the use, confidence or trust in fee simple, fee tail, for life or years, or otherwise,-or in remainder or reversion,-shall from henceforth stand and be seised or possessed of the said lands or other hereditaments of and in the like estates, as they have in the use, trust,

(d) Stat. 11 Hen. 6, c. 5.

(e) Stat. 1 Rich. 3, c. 1.

(f) Stat. 4 Hen. 7, c. 17; 19 Hen. 7, c. 15.

(g) 27 Hen. 8, c. 10. (h) 1 Rich. 3, c. 5.

(i) The words in the Act are "honours, castles, manors, lands, "tenements, rents, services, rever"sions, remainders, or other heredit"aments;" 27 Hen. 8, c. 10, s. 1.

or confidence: and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition, as they had before in the use. The effect of this statute, wherever it comes into operation, is to execute the use; that is, it instantaneously (k), and as by a kind of parliamentary magic (1), transmutes the equitable interest of cestui que use into a legal estate of the same nature, and makes him tenant of the land accordingly, in lieu of the feoffee to uses, or trustee : whose estate, on the other hand, is at the same moment annihilated (m). The use is also said to be transferred into possession (n); that is, the legal estate conferred on cestui que use is considered as an estate in actual seisin or possession (according to its nature), and such as requires no further ceremony for its completion (o). Thus if a feoffment be made to A. and his heirs to the use of B. and his heirs, an estate in fee simple in possession is eo instanti vested by force of the statute, and without livery of seisin, in B.; and A. takes nothing (p): or if a person seised in fee bargains and sells to A. for a year, for a pecuniary consideration—which we may remember constitutes a seisin in the bargainor to the use of A. (q)-A. immediately becomes, by force of the statute and without entry, possessed of the land for the term of one year; the reversion remaining in the bargainor.

Here we must observe, however, that to bring the statute into operation, it is essential that there should not only be a use, but a person seised to the use (r); for its provisions are confined to the case where "one person shall be seised to the use of any other person." And therefore

(k) 2 Bl. Com. 333. (1) Ibid. 338.

(m) Ibid. 333.

(n) 1 Saund. 251, n. (2), 234 b, n. (4).

bury, 6 Man. & Gr. 456, in notis.
(p).A.'s momentary seisin vests
no estate in him. (James v. Plant, in
error, 4 Ad. & El. 766.)

(q) Vide sup. p. 365.

(r) 1 Sand. Us. 97, 113, 133; 2 Sand. Us. 58.

(o) As to the effect upon the statutory seisin, of cestui que use disclaiming the use, see Burdett v. Spils

where an existing term of years is limited to a use, as where a term of 1000 years is assigned to B. to the use of C., it was decided by the common law judges soon after the statute passed, and has been since uniformly held, that the provisions of the statute do not apply to the case, and that the use will consequently remain unexecuted. For of such estates as these, (being mere chattels,) the termor is not seised, but only possessed (s); and therefore there is no person seised to a use as the statute requires (t). Upon the same principle of close adherence to the words of the statute, it is held, that the seisin should be vested in a different person from cestui que use himself: for otherwise the case does not arise of one person seised to the use of another (u). And the seisin should be for an estate as extensive as the use itself; for the statute only executes the use so far as there is a corresponding seisin. Thus if land be conveyed to A. for life to the use of B. in fee; the statute will vest the legal estate in B. only during the life of A. (x).

(s) Vide sup. p. 287.

(t) 1 Sand. Us. 198, 2nd edit.; Gilb. Us. 79; Bac. Read. Us. 335; Dillon v. Fraine, Poph. 76. This case, of the limitation of a term of years to a use, must be carefully distinguished from the limitation of the freehold to a use for a term of years; for the latter is executed by the statute. (Gilb. Us. 80.)

(u) 1 Sand. Us. 96.

(x) 1 Sand. Us. 113; Gilb. Us. 430. There was once a great controversy on the question out of what seisin "contingent uses" are in certain cases to be executed; and this involved the curious doctrine of scintilla juris. Thus where land is conveyed by feoffment to A. and his heirs, to the use of B. for life, remainder to the use of his unborn sons successively in tail, remainder

to the use of C. in fee; it is necessary, in order that the statute should transmute all these uses into legal estates, that there should be a seisin out of which to execute not only the uses in esse to B. and C., but the future uses to the sons of B. And by some persons it was thought necessary, also, that this seisin should exist with respect to each use at the time of its possessing the character of a use in esse. But all the actual seisin of the feoffee A. is exhausted before any son of B. is born, being drawn out of him to execute the uses in esse to B. and C.; which uses, taken together, extend to the entire inheritance. Here, therefore, was the difficulty; and in order to meet it, it was held by great authorities that there still remains in the feoffee, though not an actual seisin, yet a

As regards the use itself, also, a similar rigour of construction was adopted by the early expounders of the statute (y); and their doctrines have long since passed into settled law. The decisions of the common law courts on this subject were as follows:-1. It was held that no use can be limited upon a use (z). Thus where A., being seised, bargains and sells for a pecuniary consideration to B., the legal estate passes (as we have seen) by force of the statute to B., to whom the use is limited by the effect of the bargain and sale; and from this it might seem reasonable to infer that where A. bargains and sells to B., to the use of C., the legal estate would vest in C., for the ultimate use is here limited to him. But the judges held that it would vest in this case also in B., and that C. would take nothing; for the statute, they said, would execute the first use limited to B., but not the second, limited to C.; the latter use being a mere nullity, inasmuch "as no use can be engendered of a use (a)." Upon the same principle a feoffment to A. to the use of B. in trust for C., was held to vest the legal estate in B.; and

scintilla juris, or possibility of future seisin, to serve the future uses as they come into esse. But, according to others, there was no necessity for resorting to this theory; it being sufficient, in their opinion, for the purpose of the statute, that at the time of the creation of the future uses there should be a seisin to serve them, though there should be none at the time of their coming into esse; and they concluded that in the case supposed there would remain in A. neither any seisin nor any possibility of seisin, after the uses to B. and C. were executed. (Dy. 340; 2 Sid. 98; 1 Sand. Us. 147; Fearne, by Butler, 291; 1 Prest. Est. 170; Sugd. Gilb. Us. 131; Burt. Compend. 60; Hayes, Convey. 48;

Watk. Convey. 8th ed. 243.) The controversy, however, is now disposed of by Act of Parliament; it being provided by 23 & 24 Vict. c. 38, s. 7, that such uses shall take effect when and as they arise by force of the original seisin to the uses; and that no scintilla juris shall be necessary or deemed to remain.

(y) This strictness has been attributed to a disinclination on the part of the judges, to carry the abolition of uses so far as had been intended by the legislature. (First Real Prop. Rep. 8.)

(z) Gilb. Us. 347; 1 Sand. Us. 198, 2nd edit.; 2 Bl. Com. 335. See per curiam, Gilbertson v. Richards, 4 H. & N. 297.

(a) Tyrrel's case, Dy. 155.