Read. 43. Co.Cop. Cowp. R. 2. A Cestui que Use in Esse. Bac. Read. 42-60. 1 Inst. 112 a. Read. 60. No man can therefore convey a use in land, of which he is not in possession, when the conveyance is made. 24. Lord Bacon says, the word hereditament in the statute of uses is to be understood of those things whereof an inheritance is in esse; yet that a grant of a rent charge de novo for life, to a use was good enough; although there be no inheritance in being of the rent. It should however be observed, that in this case there is a seisin of the land out of which the rent is granted. 25. Copyhold estates are not comprised in the statute of uses; because a transmutation of possession, by the sole operation of the statute, without the concurrence or permission of the lord, would be an infringement of his rights, and tend to his prejudice. 26. The second circumstance necessary to the execution of a use by this statute is, that there must be a cestui que use in esse. If therefore a use be limited to a person not in esse, or to a person uncertain, the statute can have no operation. que 27. With respect to those who may be cestuis use, all persons capable of taking lands by any common law conveyance, may also be cestuis que use; and by the words of the statute, corporations may be cestuis que use. 28. Although a man cannot by any conveyance at common law limit an estate to his wife; yet he might have made a feoffment to the use of his wife, or a covenant with another to stand seised to the use of his wife. And such a use now created in this manner will be executed by the statute. 29. Lord Bacon says, the king may be a cestui que use, but it behoveth both the declaration of the use, and the conveyance itself, to be matter of record; because the king's title is compounded of both. 30. By the words of the statute of uses a cestui que use may be entitled to an estate, "in fee simple, or fee tail, term of life, or for years, or otherwise," or in remainder or reversion. Cases the 31. The cestui que use must in general be a diffe. In what rent person from him who is seised to the use; for Statute opethe words of the statute are, "Where any person or rates. persons stand or be seised, &c. to the use, confidence, or trust of any other person or persons, &c." And Lord Bacon says, "The whole scope of the statute Read, 63. was to remit the common law, and never to intermeddle where the common law executed an estate. Therefore the common law ought to be expounded, that where the party seised to the use, and the cestui que use, is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law." Car. 230. Dyer 186 a. n. 32. Thus, where lands were given to a man and Jenkins v. his wife, habendum to the said husband and wife, to Young, Cro. the use of them and the heirs of their two bodies; and for default of such issue, to the use of A. B. The question was, whether the husband and wife had an estate tail, or only an estate for their lives. It was adjudged that they took an estate tail. Upon a writ of error in the King's Bench, it was argued that the estate out of which the use arose was but for their lives, consequently the use could not be limited for a larger estate. But Croke, Jones, and Whitlock were of opinion, that there was a difference where an estate was limited to one, and the use to another; there the use could not be more than the estate out of which it was derived. That it was otherwise where the limitation was to two persons, Meredith v. ante, $ 32. Gilb. Rep. 16, 17. Cases and Opin. Vol. 2. 281. habendum to them, to the use of them and the heirs of their bodies; this was no limitation of the use, nor was the use to be executed by the statute, but they took by the common law. 33. The same point arose in the subsequent term, in a writ of error from a judgement given in Wales. The Court held the limitation in the habendum, to the use of the grantees, and the heirs of their bodies, to be as a limitation of the land itself, being all to one person; as if it had been said, habendum to them and to the heirs of their bodies; and not like the case in Dyer, 186. For true it was, when the estate was limited to one or two, to the use of others and their heirs, the first estate was not enlarged by this implication, and the use could not pass a greater estate. But here, when the grant and habendum conveyed the estate, and the limitation of the use was to the same person, that showed the intent of the parties, and was a good limitation of the estate; for it was not an use divided from the estate, as where it was limited to a stranger, but the use and estate went together; wherefore it was all one as if the limitation had been to them and their heirs of their bodies. Sir William Jones said he knew many conveyances had been made in this manner, and twice brought in tion, and adjudged to be an estate tail. ques 34. It was held by Lord C. J. Holt and Powell, in a subsequent case, that when a fine was levied, or a feoffment made, to a man and his heirs, the estate was in the cognizee or feoffee, not as an use, but by the common law, and might be averred to be so. 35. This doctrine is most ably discussed by Mr. Booth, in an opinion on the following case :-An estate was conveyed by lease and release to D. C. and S. and their heirs, to hold unto the said D. C. and S. for and during the natural lives of them and the sur vivor and survivors of them. The question was, whether they took by the common law, or by the statute of uses. As to this point Mr. Booth says, "We will now return to the words of the habendum in the release; taking the words, "to the use." The habendum stands literally thus; to hold unto the said D. and his companions, their heirs and assigns, to the only proper use and behoof of the said D. and his companions, their heirs and assigns, for and dur. ing the natural lives of the said D. and his companions, and the life and lives of the survivor and survivors of them. Here you observe the use limited, is not limited to any person different from the person to whom the estate is granted. The habendum is to D. and his companions, and the use is limited to D. and his companions; so that the estate and the use are both to one and the same person; and therefore this cannot be a statute use, for the seisin doth not go or belong to one person, and the use to another person; whereas the statute requires that there should be a standing seised by some third person or persons to the use of some other person. And that case of Young v. Jenkins is express, that where the use is ante § 32. not divided from the estate, and the use and the estate go together, there it amounts only to a limitation of the estate, and consequently is not a statute use, but only a common law use. And if at this day a man should enfeoff I. S. to hold to the said I. S. and his heirs, to the use and behoof of the said I. S. and his heirs for ever, no man living would call that a statute use; for the words would import no more than the words, "for his and their sole benefit and behoof;" and would only serve to show in how ample and beneficial a manner the feoffee was to take Bac. Read. 63. the estate limited to him by the habendum; which being manifestly an estate at common law, could not also give or create a statute use. The words of Lord Holt in the case of Lord Altham v. Earl of Anglesey, before recited, are directly in point. In like manner it would be, if there were a feoffment to a man and his assigns, to hold to that man and his assigns, to the only use and behoof of him and his assigns, during his life; that would only limit an estate of freehold to him for his life, at common law; and not be the limitation or creation of any statute use. It would be the same in the case of a feoffment to one of lands, to hold to the feoffee and his heirs, to the only use and behoof of the feoffee and his heirs, during the lives of A. B. C. D. and twenty other persons. There the words to the use and behoof would pass no statute use, or pass any thing distinct from the estate; which estate would be an estate at common law; and the words to the use and behoof, would serve only to shew the amplitude of the estate given by the feoffment; and that the feoffee and his heirs were to take the same for his and their own benefit, without return of any service whatever to the donor." 36. There are however some cases where the same person may be seised to a use, and also cestui que use. Thus, if a man makes a feoffment in fee to one, to 13 Rep. 56. the use of him and the heirs of his body; in this case, for the benefit of the issue, the statute, according to the limitation of the uses, divests the estate vested in him by the common law, and executes the same in himself, by force of the statute: and yet the same is out of the words of the statute, which are, "to the use of any other person." and here he is seised to the use of himself. But the statute has always been beneficially expounded, to satisfy the intention of the |