the use. uses. 11. A. committed high treason in 18 Eliz., for which he was attainted in 26 Eliz. Pimb's Case, Between the Moo. 196. 1 treason and the attainder, a fine was levied to him by B. of certain lands, to the use of B. and his wife (who was sister to A.) and of the heirs of the said B. Afterwards B. bargained and sold the lands to J. S. for money. Upon discovery of the treason and the attainder of A. the purchaser was advised by Plowden, Popham, and many others, that the land was in the queen; because the queen was entitled to all the lands that traitors had, at the time of the treason, or after; so the use which was declared to B. and his wife upon the fine was void, by the relation of the right of the queen under the attainder; and the queen must hold the land, discharged of the use; because she could not be seised to a use. It is but justice to mention, that the case being represented to queen Elizabeth, she granted the land to the cestui que use. 66 any Inst. 13 a. n. 7. Bac. Read. 42-57. 12. By the words of the statute, which are, person or persons," aliens and corporations are excluded from being seised to a use; therefore it was determined, in a case reported by Dyer, that where King v. an alien and a natural-born subject were enfeoffed to uses, the moiety of the alien should, upon office found, become vested in the crown. Boys, Dyer, 283 b. Estate. 13. With respect to the estate or interest of which of what a person may be seised to a use, the words of the statute are," where any person or persons stand or be seised, or at any time hereafter shall happen to be seised." Now the word seised extends to every Estate Tail. species of freehold estates, although it appears to have been the general opinion, before and immediately after the passing of this statute, that all feoffees to uses must have been seised in fee simple. 14. It was therefore formerly much doubted, whether a tenant in tail could be seised to a use. Cent. 5. ca. 1. Jenkins states it as a point determined, by all the Judges, that a tenant in tail cannot be seised to a use, either expressed or implied: 1st, Because the tenure creates a consideration; 2dly, Because the statute De Donis has so appropriated and fixed the estate tail to the donee, and the heirs of his body, that neither he nor they can execute the use. Hence 1 Inst. 196. Lord Coke has said, that if an estate be made to a man and the heirs of his body, either to the use of another and his heirs, or to the use of himself and his heirs, this limitation of use is utterly void. 15. The case upon which Lord Coke and Jenkins have founded their opinion is, that of Cowper v. Franklin, which arose in 12 Ja. I., and is thus reCro. Ja. 400. ported by Croke:-John Walter being seised in fee, made a feoffment in fee to Thomas Walter, habendum to him and the heirs of his body, to the use of him and his heirs and assigns for ever. The question was, whether Thomas Walter had an estate in fee tail only, or in fee simple determinable upon the estate tail. This depended upon two points : 1st, Whether a use might be limited upon an estate tail before or after the statute of uses. 2dly, Whether this limitation of uses to Thomas Walter and his heirs should not be intended the same uses, being to the feoffee himself, and to the same heirs, as it was in the habendum. Croke reports the case to have been adjourned: but the opinion of the Court upon the argument, inclined that he was tenant in tail; and that the limitation of the use out of the estate tail was void, as well after the statute of uses as before; for the statute never intended to execute any use, but that which might be lawfully compelled to be executed before the statute: but this could not be of an estate tail, for the Chancery could not compel a tenant in tail, before the statute, to execute the estate; so the statute did not execute it then. Bulstrode reports a second argument upon this 3 Buls. 184. case, together with the judgement of the Court; which was, that Thomas Walter took an estate tail, because a tenant in tail could not be seised to a use. Godbolt reports the case to have arisen upon a 269. limitation to one and the heirs of his body, habendum. to the donee, to the use of him, his heirs and assigns for ever; and that and that two points were resolved.. 1st, That the limitation in the habendum did not increase or alter the estate given in the premises of the deed. 2dly, That a tenant in tail might stand seised to a use expressed; but such use could not be averred. The same case is also reported by Moor by the 848. name of Carrier v. Franklin, where the court appears to have considered it as a question of construction: and held that the feoffee only took an estate tail, because the use to him and his heirs, immediately succeeding the habendum, must be construed to mean the same kind of heirs to whom the estate had been already limited, namely, the heirs of the body of the feoffee. 16. If this case be considered as an authority, it will only prove that a tenant in tail cannot be seised to a use in fee: but that a tenant in tail may be Read. 57. 10 Rep. 95. Plowd. 557. seised to a use, co-extensive with his estate, is a doctrine which it would be extremely dangerous to controvert. Lord Bacon expressly says, that a tenant in tail may be seised to a use. "If I give land in tail by deed since the statute to A. to the use of B. and his heirs, B. hath a fee simple determinable upon the death of A. without issue; and like law, though doubtful, before the statute was; for the chief reason that bred the doubt before the statute was, because tenant in tail could not execute an estate without wrong; but that, since the statute, is quite taken away, because the statute saveth no right of entail, as the statute of 1 Rich. III. did. 17. In Seymour's case, 10 Ja. I., a tenant in tail bargained and sold his estate tail to a stranger in fee: it was unanimously resolved, by the Court of King's Bench, that the bargainee took an estate to him and his heirs, determinable upon the death of the tenant in tail. Now this determination must have been founded on the principle that a tenant in tail might Vide Tit. 32. be seised to a use; for otherwise the bargain and sale would have been void. c. 9. 18. It may therefore be now laid down as an undoubted principle of law, that a tenant in tail may be seised to a use, even in fee; and that such use will be good against the tenant in tail himself. And as tenants 2 Rep. 77 a. in tail have ever since the time of Lord Coke been in the practice of transferring their estates to the persons who were to be tenants to the præcipe, in fee simple, by conveyances derived from the statute of uses; if it were established that a tenant in tail cannot be seised to a use, the consequence would be, that almost all the common recoveries which have been suffered for the two last centuries, would be void for want of a good tenant to the præcipe. Life. 19. A tenant for life may be seised to a use; such Estate for use will however determine together with the legal estate, which is transferred to it by the statute upon the death of the tenant for life; for a cestui que use cannot have an estate in the use, of greater extent than the seisin out of which it is raised. 130. 20. In 2 & 3 Eliz. this case was moved :-Lands Dyer 186. a. were given to two persons for their lives, and the life pl. 1. Crawley's of the survivor of them, to the use of A. B. for his Case, 2 And. life. The two donees to uses died; and the question was, whether the estate to A. B. was determined. The Court thought it was determined; because the estate on which the use was created and raised was gone. 21. It follows from this case, which is cited and admitted to be good law in Bulstrode's report of the case of Cowper v. Franklin, and also in a case reported by Croke; that all persons having a legal Cro. Car, estate of freehold may be seised to a use. If the use is greater than the estate out of which it is limited, it will cease upon the determination of that estate, but will be good in the mean time. 231. Uses. 22. With respect to the different kinds of property What may be whereof a person may be seised to the use of another; conveyed to the words of the statute are" Honors, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments." Which comprehends every species of real property, in possession, remainder, or reversion; therefore not only corporeal hereditaments, but also incorporeal ones, such as advowsons, tithes, rents, &c., are within this statute. Cro. Eliz. 23. Nothing however can be conveyed to uses, 2 Roll. Ab. but that whereof a person is seised at the time; for, in 790. law, every disposal supposes a precedent property. 401. VOL. I. Ee |