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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
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
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
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
much the real owner of the fee, as if he did not hold it to the use of another. He per-
inconveniencies, the Statute of 27 H. 8 was passed, by which the possession was di-
by that Statute, it is enacted, that, when any person shall be seised of any lands to
“Down to the time of Hen. VI., the cestui que trust could only proceed in the Court
“ 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-
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
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
heirs, which be, of interest, possessi
action, as they or to any manonfter she