the particular estate (u). So the remainder may be either vested or contingent (x); and is subject (if contingent) to the common law rule, that if it amount to freehold, it cannot be limited on a particular estate less than freehold (y). Legal estates created by way of use are also subject, in general, to the same incidents as if created by the methods of the common law (2). Thus, where a particular estate was limited by way of use, it was formerly liable to forfeiture if the tenant made a feoffment for a larger estate than his interest warranted; and if a contingent remainder was limited by way of use, and the particular estate was destroyed before the contingency happened, the remainder was defeated (a). We have seen, however, that in both of these cases, the former law is now affected by the provisions of the recent statute 8 & 9 Vict. c. 106 (b).

But while a limitation by way of use, is thus in general subject to common law principles, there are some very material particulars, in which it has always been allowed a greater latitude (c). The nature of these may be explained as follows.

1. By the common law, a man could not in any case be a purchaser (that is, take an estate) by his own conveyance; for he could not, in the nature of things, unite the opposite capacities of grantor and grantee (d). Thus A. seised in fee, could not convey to himself for life, remainder over to B. in fee; nor to B. for life, remainder to himself, the

(u) Sugd. Gilb. ib. 164; vide sup. p. 329.

(x) Sugd. Gilb. lviii. 153, 164.
(y) Ibid. 164, 165; vide sup. p.

334.

(z) 1 Sand. Us. 166. (a) Sugd. Gilb. 298.

(b) Vide sup. pp. 332, 336, 338, 339.

(c) 1 Sand. Us. 130.

(d) Per Hale, Pibus v. Mitford, 1 Vent. 378; Southcot v. Stowell, 2 Mod. 210; 1 Sand. Us. 131, 132;

"Nemo potest esse agens et patiens," 2 Prest. Est. 20. As to personal property, (including chattels real,) a recent statute has made the following provision, viz., that any person shall have power to assign personal property, now by law assignable, including chattels real, directly to himself and another person or other persons or corporations, by the like means as he might assign the same to another. (22 & 23 Vict. c. 35, s. 21.)

grantor, in fee. In the first case, the whole conveyance would be void; in the second, the remainder: A. in such case taking no remainder, but continuing in the reversion, as of his former estate (e). And the distinction involved this practical difference, that the reversion, being the old estate, was in its descent confined to the blood of the same purchaser as before; whereas if A. had taken (or in other words purchased) it as a remainder, it would (according to the general law of inheritance) have been descendible to his heirs general, whether his former title had been by purchase or descent (f). But indirectly, and through the medium of a limitation to uses, it has been always practicable for a man to become purchaser by his own conveyance (g). Thus A. may by feoffment, or lease and release, convey to a third person C., to the use of himself, the grantor, for life, with remainder to the use of B., in tail or in fee; or to the use of B. for life, with remainder to the use of himself, the grantor, in tail; and in all these cases he will take the legal estate by purchase accordingly (h). Though if the remainder were to the use of himself in fee, he would formerly not have taken by purchase; at least not in such sense as to make him a purchasing ancestor. For such a use was considered as amounting only to the old use in reversion, so that it would be converted by the statute into a legal estate in reversion, which would descend to the blood of the same purchaser as before (i). And such was the state of the law at the time of passing the Inheritance act (3 & 4 Will. IV. c. 106); but that Act has

(e) Co. Litt. 22 b; Read v. Errington, Cro. Eliz. 321; 2 Bl. Com. 176. It is to be recollected here, that a reversion is always the old estate, a remainder a new one; vide sup. pp. 319, 324.

(f) 2 Bl. Com. 176; Watk. Desc. 169; vide sup. pp. 394, 432.

(g) Per Hale, Pibus v. Mitford, 1 Vent. 378; Southcot v. Stowell, 2 Mod. 210; Watk. Desc. 180,

(h) Co. Litt. 22 b; Co. Litt. by Harg. 13 a, n. (2); 1 Sand. Us. 135; Sugd. Gilb. 150, 151.

(i) 1 Rep. 129 b, 130 a; Co. Litt. 23 a; Reed v. Errington, Cro. Eliz. 321; Ld. Raym. 802; Godolphin v. Abingdon, 2 Atk. 57. The case was the same where the use in fee resulted to the grantor, instead of being expressly limited. As to resulting uses, vide sup. p. 365.

now established a new rule with respect to the limitation which a man makes in his own favour, in his own conveyance; the terms of the provision (section 3) being as follows:-" that when any land (k) shall have been limited

66

by any assurance, executed after the 31st December, "1833, to the person, or to the heirs (1) of the person, "who shall thereby have conveyed the same land; such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not "be considered as entitled thereto as his former estate, or 66 part thereof." We may add here, that upon the same principle which made it impossible for a man to convey to himself, he could not at common law convey to his wife (m); she being considered by that law as the same person with him. Yet the object may be effected through the medium of a limitation to uses; that is, by creating a seisin in another person, and declaring a use to the wife (n).

2. At common law, a freehold cannot be created to commence in futuro; or in other words, cannot be limited to take effect at a future period, except by way of remainder upon some particular estate also passing at the same time out of the grantor; for which rule, and the reasons on which it is founded, the reader is referred to a former part

(k) The word land is used in this Act in a sense much larger than properly belongs to it; and is to be understood to extend to all hereditaments, corporeal or incorporeal, freehold or copyhold; and every interest capable of being inherited, including chattels and other personal property, if transmissible to heirs. (3 & 4 W. 4, c. 106, s. 1.)

(1) A limitation by a man to his own heirs, is equivalent to a limitation to himself and his heirs; "for," says Lord Coke, “hæres est pars ante"cessoris. And this appeareth in a

common case, that if land be given "to a man and his heirs, all his

"heirs are so totally in him, as he 'may give the land to whom he "will."-Co. Litt. 22 b; and see 1 Vent. 378; 2 Bl. Com. 176. A limitation by a man to his own heirs was consequently subject, before the Inheritance Act, to the same rules as stated in the text with respect to a limitation by him to himself in fee, or to his own use in fee. (1 Rep. 129 b, 130 a; Co. Litt. 22 b.)

(m) Co. Litt. 112 a; Moyse v. Giles, 2 Vern. 385; Lucas v. Lucas, 1 Atk. 271; Arthur v. Bokenham, 11 Mod. 156.

(n) 1 Sand. Us. 132.

of the work (o). But this may be effectually done by a conveyance under the Statute of Uses; for a use was never subject to the like restriction, but may be limited for any extent of interest, to commence in futuro (p); and the statute, taking effect on such future interest, transmutes it into legal estate (q). Thus a man may covenant to stand seised to the use of another in fee seven years hence, or bargain and sell to him in fee after seven years, and such conveyance will be effectual (r). So by feoffment, or lease and release, an estate may be conveyed to A. and his heirs, to the use of B. and his heirs at the death of C. (s). A use thus limited in futuro, independently of any preceding estate, is called a springing use (t). Such a use is also often described as executory, because it is not executed by the statute until it comes into esse by the arrival of the period contemplated. Thus, in the two first examples, the whole fee remains in the covenantor or bargainor, till the seven years expire (u); in the two latter, a use results to the feoffor or releasor, till the death of C. (x). But on these events the springing use is executed, and the cestui que use is clothed with the legal estate in fee.

3. By a common law conveyance, an estate cannot be limited, upon a future event, to one person, in abridgment or defeasance of an estate of freehold, first limited to another (y); which is often expressed, where the dispositions are both in fee simple, by the maxim that a fee cannot be limited on a fee (z). Thus land cannot be conveyed at

(0) Vide sup. pp. 326, 327; Sugd. Gilb. 163, (n.); 1 Sand. Us. 138.

(p) Vide sup. p. 368.

(q) Sugd. Gilb. 161, (n.)

(r) 1 Sand. Us. 139.

(s) Ibid. 140.

(t) Sugd. Gilb. 153.

(u) Ibid. 161, (n.) 153, (n.) (r) 1 Sand. Us. 140.

(y) Co. Litt. by Butl. 203 (b), n. (1); Cogan v. Cogan, Cro. Eliz. 360; Fearne, by Butl. 14, 15, 18,

264, 9th edit.

(2) Fearne, by Butl. 372, 9th ed.; 1 Sand. Us. 143; 2 Bl. Com. 173, 164. This maxim applies, not only to such limitations as referred to in the text, but also to limitations of one fee upon another by way of remainder. For no remainder (as we have seen) can be limited on a feesimple (vide sup. p. 326.) And therefore if land be given to A. and his heirs, so long as B. has heirs of

common law to B. in fee, or for life, with provision that when C. returns from Rome, it shall thenceforth immediately go over to C. in fee (a). For this would be to defeat the first estate by force of a condition, which can only be done by the entry of the grantor, or his heirs; and the effect of such entry would be to destroy the second limitation as well as the first, and to restore the grantor and his heirs to their former estate (b). But a use might always be made to shift, in this manner, from one person to another (c); and therefore, since the statute, land may be conveyed through the medium of a use, in like manner; as by limiting it to A. and his heirs, to the use of B. and his heirs, with proviso, that when C. returns from Rome, the land shall be to the use of C. and his heirs (d). A use so limited in derogation of a preceding estate, is called a shifting or secondary use (e); and this also is of the executory kind, the operation of the statute being suspended till the event arrives (f). Thus, in the example just given, there is a use first executed by the statute in B., and when C. returns from Rome, the use to C. comes into esse, and is executed in him (g), It is, however, to be observed, that as, upon questions of legal construction, a preference is always given to the modifications of the common law ; his body (which is a fee-simple qualified, vide sup. p. 244), with remainder in fee to C., this remainder is void. (Fearne, by Butl. 372, 9th edit.) And the maxim, in this sense of it, applies to conveyances under the Statute of Uses, as well as those at common law. It is, however, to be recollected, that there may be alternate or substituted limi. tations of the fee, where each of them is by way of contingent remainder (vide sup. p. 332). See the maxim further discussed in the recent case of Egerton v. Massey, 3 C. B. (N.S.) 338.

(a) Fearne, by Butl. 14, 15, 9th ed.

(b) Co. Litt. 379 a; Litt. ss. 721, 722, 723; 1 Sand. Us. 151; vide sup. p. 307.

(c) Sugd. Gilb. 153, 154, (n.); 1 Sand. Us. 152.

(d) 1 Sand. Us. 149.

(e) 1 Sand. Us. 152; Sugd. Gilb. 152, (n.)

(f) Sugd. Gilb. 154, 155, (n.); 1 Sand. Us. 144.

(g) This form of disposition is sometimes called a conditional limitation, a term, however, which is also used in a different sense. See Fearne, by Butl. (9th ed.) pp. 13, 15; Sugd. Gilb. 178 (n.); 1 Sand. Us. 151.