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Cant becauseised to the use of another, but he which may execute an estate to fer could walcestui que use, which shall be perfect in law, which tenant in tail

cannot do; for if he executes an estate, his issue shall have a formedon ; and the best opinion [is] that an abbot, mayor and commonalty, nor other corporations shall not be seised to a use, for their capacity is only to take to their own use : and also if the abbot execute an estate, the successor shall have a writ of entry sine assensu capituli : and those that are in the post, as by escheat, mortmain, perquisite of villein, recovery, dower, curtesy, and the like, are seised to

their own use and not to another use : and also the Stat. of 1 R. 3, st. R3

is, That all gifts, feoffments & grants of cestui que use shall be
good against all, &c. saving to all persons their rights and interests
in tail, as if this Stat. had not been made ; and therefore tenant in
tail shall not be seised to a use. And 't was agreed by the court,
That the words in the end of the Stat. of 1 R. 3, saving such right
and interest to the tenant in tail, &c. is taken tenant in tail in
possession; and not tenant in tail in use : for cestui que use in tail
hath no right nor interest. And also here there is a tenure betwist
the donors and the donees, which is a consideration that the tenant
in tail shall be seised to his own use: and the same law of tenant
for term of years, and tenant for life, their fealty is due ; and where
a rent is reserved, there, thongh a use be expressed to the use of the
donor, or lessor, yet this is a consideration that the donee or les-
see shall have it to his own use: and the same law where a man
sells his land for £20 by indenture, and executes an estate to his
own use; this is a void limitation of the use : for the law by the con-
sideration of money, makes the land to be in the vendee. Et opinio ,
fuit, That a use was at common law before the Stat. of Quia emp-
tores terrarum, but uses were not common before the same Stat. For
upon every feoffment before this Stat. there was a tenure betwixt the
feoffors and the feoffee; which was consideration, that the feoffee
shall be seised to his own use; but after this Stat. the feoffee shall
hold de capitali domino, and there is no consideration betwixt the
feoffor and the feoffee without money paid, or other especial matter
declared, for which the feoffee shall be seised to his own use : for where
the Stat. of Marlebr. is, that a feoffment by the father, tenant in
chivalry, made to his son by covin, shall not toll the lords ward, &c.
In these cases the feoffor after such feoffment takes the profits of the
land all his life. And the same law by SHELLEY (J.] of a feoffment
made by a woman to a man to marry her, the woman takes the profits
after the espousals : Quære inde ; for this is an express considera-
tion in itself. And by NORWICH, [J.7 If a man deliver money to J. S.
to buy land for him, and he buys it for himself, & to his own use, this
is to the use of the buyer, and not to the use of him who delivered
the money; and there is no other remedy but an action of deceit.

1 “But one of the most important circumstances, in the history of the decline of the feud, is, the introduction of uses. By these the legal estate of the land was in the

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feoffee. In fact, therefore, there never was a vacancy in the tenure. But the ownership and beneficial property of the land being absolutely vested in the cestui que use, there was no point of connection, between him and the lord. Besides, when a feoffment was made to uses, it seldom happened, that, the feoffment was made to a single person. The o feoffees were numerous, and when their number was reduced to that of one or two persons, a new feoffment was made to other feoffees, to the subsisting uses. In the meantime, the ownership of the land was transmitted and aliened, at the will of the cestui que use. It is evident that, while the fief was held in this manner, there was a wide separation between the lord and the tenant. It must also be observed, that, where there was a feoffment to uses, the fruits of tenure incident to purchase, became seldom due, and those incident to descent almost never accrued to the Tora. Now, where a person took by purchase, the lord was only entitled to the trilling acknowledgment of relief: when he came in by descent, the lord was entitled to the grand fruits of military tenure, wardship, and marriage. From these observations, it is clear, how great a fraud was practised upon the lord, by the introduction of uses. A fief thus circumstanced, presented an apparent tenant to the lord, but it was almost barren of every fruit and advantage of tenure, and the land itself was entirely subtracted from the feud. Hence we find, that, among the mischiefs recited in the preamble to the Statute of Uses, the loss to the lord, of the fruits of tenure, is particularly insisted on. It does not fall within the nature of these observations, to mention the steps which were taken to extirpate uses. One of them was the Statute of the 1 Richard the 2d. cap. 9, which gave an action to the disseisee, both against the feoffee, and the cestui que use. It is observable, that the senatus consultum Trebonianum gave the same right of action against the heres fidei commissarius. Unquestionably the object of the Statute of the 27 of Henry 8 was to effect a total extirpation of uses.” Co. Lit. 191 a. Butler's note, VI. 11.

“ The introduction of Uses produced a great revolution in the transfer and modification of landed property. Without entering into a minute discussion of the difference between uses at common law, and uses since the Statute of 27 H. 8, – a point, particularly well explained in Mr. Sanders's Essay on Uses and Trusts, it is sufficient to state the following circumstances. Uses at the common law were, in most respects, what trusts are now. When a feoffment was made to uses, the legal estate was in the feoffee. He filled the possession, did the feudal duties, and was, in the eye of the law, the tenant of the fee. The person to whose use he was seised, called by the law-writers the cestuy que use, had the beneficial property of the lands, had a right to the profits, and a right to call upon the feoffee to convey the estate to him, and to defend it against strangers. This right at first depended on the conscience of the feoffee: if he withheld the profits from the cestuy que use, or refused to convey the estate as he directed, the cestuy que use was without remedy. To redress this grievance, the writ of subpæna was devised, or rather adopted from the common-law courts, by the Court of Chancery, to oblige the feoffee to attend in court, and disclose his trust, and then the court compelled him to execute it. Thus uses were established. -- They were not considered as issuing out of, or annexed to the land, as a rent, a condition, or a right of common ; but as a trust reposed in the feoffee, that he should dispose of the lands, at the discretion of the cestuy que use, permit him to receive the rents, and, in all other respects, to have the beneficial property of the lands. Yet an use, though considered to be neither issuing out of, or annexed to the land, was considered to be collateral to it, or rather as collateral to the possession of the feoffees in it, and of those claiming that possession under them. Hence the disseisor, abator, or intruder of the feoffee, or the tenant in dower, or by the courtesy of a feoffee, or the lord entering upon the possession by es. cheat, were not seised to an use, though the estates in their hands were subject to rents, commons and conditions. They were considered as coming in by a paramount and extraneous title ; or, as it is called in the law, in the post, in contradistinction from those who, claiming under the feoffee, were said to be in the per. Thus, between the feoffee and cestui que use, there was a confidence in the person and privity in estate. (See Chudleigh's Case, 1 Rep. 120, and Burgess and Wheate, 1 Bla. 123.) But this was only between the feoffee and cestui que use. To all other persons the feoffee was as

SECTION II.

STATUTE OF USES.

St. 27 HEN. VIII. (1536) C. 10. Where by the common laws of S. this realm, lands tenements and hereditaments be not devisable by tes- muself tament, (2) nor ought to be transferred from one to another, but by solemn livery and seisin, matter of record, writing sufficient made bona fide, without covin or fraud ; (3) yet nevertheless divers and sundr imaginations, subtle inventions and practices have been used, whereby the hereditaments of this realm have been conveyed from one to another

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much the real owner of the fee, as if he did not hold it to the use of another. He per-
formed the feudal duties ; his wife was entitled to dower ; his infant heir was in ward-
ship to the lord ; and, upon his attainder, the estate was forfeited. To remedy these

inconveniencies, the Statute of 27 H. 8 was passed, by which the possession was di-
fait vested, out of the persons seised to the use, and transferred to the cestuis que use. For,

by that Statute, it is enacted, that, when any person shall be seised of any lands to
the use, confidence, or trust of any other person or persons, by reason of any bargain,
sale, feoffment, fine, recovery, contract, agreement, will, or otherwise : then, and in
every such case, the persons having the use, confidence, or trust, should from thence-
forth be deemed and adjudged in lawful seisin, estate, and possession of and in the
lands, in the same quality, manner, and form, as they had before in the use.'” Co. Lit.
271 b, Butler's note, II.

“Down to the time of Hen. VI., the cestui que trust could only proceed in the Court
of Chancery against the feoffee in trust himself; indeed it was insisted by the common
law judges in the reign of Edw. IV., that a subpæna did not lie against the heir of
the trustee; afterwards, by universal consent, it was extended to his heir, and then to
alienees with express notice of the trust, or without valuable consideration, in which
case notice was implied. But a purchaser of the legal estate for valuable consideration
bona fide, without notice, might then, as now, hold the land discharged of any trust
or confidence; the only remedy was against the feoffee, or his executor if the feoffee
were dead.

“ If the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for the escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, was liable to perform the trust, because they were not parties to the transaction, but came in by act of law, or in the post, and not in the per, as it was said, though doubtless their title in reason was no better than that of the heir against whom the remedy was extended. It was the same as regards any other person who obtained possession, not claiming by any contract or agreement with the fegffee, between whom and the cestui que use, there. fore, there was no privity. Where there was no trust, there could be no breach of trust.' The remedy against a disseisor, therefore, was not in chancery at the instance of the cestui que trust, but at law at the instance of the feoffee ; and it was part of his duty to pursue his legal remedies at the desire of the cestui que trust.

“As regards the cestui que trust also, privity was in some sense essential to his obtaining relief ; thus, on the death of the original cestui que trust, in the case of a simple trust or use, the right to sue a subpena was held to descend to the heir as representing his ancestor ; but neither a wife, a husband, nor judgment creditor was entitled to this privilege." 1 Spence Eq. Jur. 445.

by fraudulent feoffments, fines, recoveries, and other assurances craft-
ily made to secret uses, intents and trusts; (4) and also by wills and
testaments, sometime made by nude parols and words, sometime by by
signs and tokens, and sometime by writing, and for the most part made muddet
by such persons as be visited with sickness, in their extreme agonies o durean
and pains, or at such time as they have scantly had any good memory many incon-
or remembrance; (5) at which times they being provoked by greedy wentuar
and covetous persons lying in wait about them, do many times dispose have moullish
indiscreetly and unadvisedly their lands and inheritances ; (6) by reason asb-15
whereof, and by occasion of which fraudulent feoffments, fines, recov-
eries, and other like assurances to uses, confidences and trusts, divers
and many heirs have been unjustly at sundry times disinherited, the
lords have lost their wards, marriages, reliefs, barriots, escheats, aids
pur fair fils chivalier & pur file marier, (7) and scantly any person
can be certainly assured of any lands by them purchased, nor know,
surely against whom they shall use their actions or executions for their
rights, titles and duties ; (8) also men married have lost their tenancies
by the curtesy, (9) women their dowers, (10) manifest perjuries by
trial of such secret wills and uses have been committed ; (11) the
King's Highness hath lost the profits and advantages of the lands of
persons attainted, (12) and of the lands craftily put in feoffments to
the uses of aliens born, (13) and also the profits of waste for a year
and a day of lands of felons attainted, (14) and the lords their escheats
thereof; (15) and many other inconveniencies have happened and daily
do increase among the King's subjects, to their great trouble and in-
quietness, and to the utter subversion of the ancient common laws of
this realm; (16) for the extirping and extinguishment of all such
subtle practiced feoffments, fines, recoveries, abuses and errors here-
tofore used and accustomed in this realm, to the subversion of the good
and ancient laws of the same, and to the intent that the King's High-
ness, or any other his subjects of this realm, shall not in any wise
hereafter by any means or inventions be deceived, damaged or hurt, by
reason of such trusts, uses or confidences : (17) it may please the
King's most royal majesty, That it may be enacted by his Highness, by
the assent of the Lords Spiritual and Temporal, and the Commons, in
this present Parliament assembled, and by the authority of the same,
in manner and form following ; that is to say, That where any person
or persons stand or be seised, or at any time hereafter shall happen to
be seised, of and in any honours, castles, manors, lands, tenements,

rents, services, reversions, remainders or other hereditaments, to the Couteaulhuse, confidence or trust of any bther person or persons, or of any body multe politick, by reason of any bargain, sale, feoffment, fine, recovery, coveseiset-lonant, contract, agreement, will or otherwise, by any manner means

whatsoever it be; that in every such case, all and every such person
and persons, and bodies politick, that have or hereafter shall have any
such use, confidence or trust, in fee simple, fee tail, for term of life or
for years, or otherwise, or any use, confidence or trust, in remainder or

reverter, shall from henceforth stand and be seised, deemed and adjudged in lawful seisin, estate and possession of and in the same bonours, castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, constructions and purposes in the law, of and in such like estates as they had or shall have in use, trust or confidence of or in the same; (19) and that the estate, title, right and possession that was in such person or persons that were, or hereafter shall be seised of any lands, tenements or hereditaments, to the use, confidence or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have, or hereafter shall have, such use, confidence or trust, after such quality, manner, form and condition as they had before, in or to the use, confidence or trust that

was in them. where

II. And be it further enacted by the authority aforesaid, That where

divers and many persons be, or hereafter shall happen to be, jointly seiseta seised of and in any lands, tenements, rents, reversions, remainders or

other hereditaments, to the use, confidence or trust of any of them that be so jointly seised, that in every such case that those person or persons which have or hereafter shall have any such use, confidence or trust in any such lands, tenements, rents, reversions, remainders or hereditaments, shall from henceforth have, and be deemed and adjudged to have only to him or them that have, or hereafter shall have any such use, confidence or trust, such estate, possession and seisin, of and in the same lands, tenements, rents, reversions, remainders and other hereditaments, in like nature, manner, form, condition and course, as he or they had before in the use, confidence or trust of the same lands, tenements or hereditaments; (2) saving and reserving to all and singular persons and bodies politic, their heirs and successors, other than those person or persons which be seised, or hereafter shall be seised, of any lands, tenements or hereditaments, to any use, confidence or trust, all such right, title, entry, interest, possession, rents and action, as they or any of them had, or might have had before the making of this Act.

III. And also saving to all and singular those persons, and to their neare anai

heirs, which be, or hereafter shall be seised to any use, all such former right, title, entry, interest, possession, rents, customs, services and action, as they or any of them might have had to his or their own proper use, in or to any manors, lands, tenements, rents or hereditaments, whereof they be, or hereafter shall be seised to any other use, as if this present Act had never been had nor made; any thing contained in this Act to the contrary notwithstanding.

IV. And where also divers persons stand and be seised of and in any lands, tenements or hereditaments, in fee-simple or otherwise, to the use and intent that some other person or persons shall have and perceive yearly to them, and to his or their heirs, one annual rent of x. li. or more or less, out of the same lands and tenements, and some

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action, as they or to any manonfter she

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