gives her a remedy to recover her land back by a writ of entry causa matrimonii praelocuti. And so if I will that my executor sell my land which is devisable, if he will not, but takes the profits to his own use, the heir may enter upon him for the non-performance of his trust as was adjudged in 38 Lib. Ass. p. 3. And then the trust is a necessity, for a dead man cannot perform his own will. But, Sir, in this present case this feoffment in trust was only a pleasure and not a necessity, but still he is as much bound in conscience to perform his will as the executor since he took the estate to do it, and if he deceives him no one will say that he does well. At the common law the feoffor had no remedy except by subpoena, but now by the statute he may enter and make a feoffment according to his will, if his feoffee will not do his will. But how a use shall be changed depends upon the common law and upon the estate of the feoffee, for if I enfeoff B. to hold to him his heirs and assigns, my trust and confidence is in him, his heirs, and assigns; and this is easily shown, for the heirs will be bound to perform the feoffor's will as much as the father, and the second feoffee as much as the first, if there is no consideration, and so it is if the feoffee suffer a recovery without a consideration. For it shall be intended since he parted with the land without consideration that he parted with it in the most proper way, i. e. to hold it as he held. For when an act rests in intendment and is indifferent, the law makes the most favorable presumption, for if I see a priest and a woman together suspiciously, still as long as there is doubt whether he is doing good or evil the former is to be presumed, and so here. And, Sir, the rent is, in a manner, part of the land, and here the trust was in the land out of which the rent was granted, and this grant is without consideration, and it may be granted to the first use, wherefore it shall be so intended. And although the rent was not in esse and he had no use in it before, still he may have the use. For I take it clearly if one is seised of a seigniory in gross and grants it to his use, if the land escheats, that the feoffee shall nevertheless be seised to the first use for it comes in lieu of the seigniory: and yet he had no use in the land before; and so one may grant for term of life and express the use.

BROKE, J. to the same intent. Sir, as the feoffor puts confidence and trust, so shall be his use, and the use is in the feoffor in conscience, although the feoffee has the land by the common law. And so it is not like an estate upon condition at common law, for the whole inheritance is in the feoffee, and if he dies without heir, the feoffor cannot enter; but if he gives the land in tail and the donee dies without heir, he may enter, and every dealing with the land should be according to the wish of the feoffor. For if the feoffee acts otherwise, he is chargeable in conscience, and so is the heir of the feoffee; and the feoffee of the feoffee if there is no consideration; and so is he who comes in by fine and false recovery. Scilicet, those recoveries in a writ of entry in the post. For in all these cases it is the act of the feoffee and being without consideration the law intends that it was according to the first use; and,

Sir, conscience does not make the use, but common reason which is
common law, which is indifferent to all laws spiritual and temporal;
and, Sir, although common reason says that if I enfeoff one without con-
sideration, this shall be to my use, still this land shall be in the feoffee
like any other land and take the same course for if he has a wife and
dies, his wife shall have dower to her own use, for here there is no act
of the feoffee and she does not claim by the feoffee, but the law makes
her estate; and so if he is bound in a statute merchant; and so in case
of a lord taking by escheat, for in these cases there was no act by the
feoffee, to deceive or defraud the feoffor, but it was done by order of the
law. And, Sir, the notice as here is the important matter, for if there
was no notice there would be no use, but if he has notice, he is par-
ticeps criminis.

POLLARD, J. to the same intent. As has been said uses were at the not so uses, common law and are nothing more than confidence and trust, and the were must at feoffee is bound to act according to the trust, otherwise he would deceive his feoffor, which would not be reason. And there is a diversity when there is a default in the feoffee in deceiving the feoffor, and when not, for if the feoffee die his wife shall have dower, and so in case of a statute merchant or escheat, for there is no default in feoffee, but the operation of law. But the default is in me, and although my feoffee is bound in a statute merchant, still I can enter and make a feoffment and the execution is discharged. And so if my feoffee endowed his wife ad ch, poor ostium ecclesiæ and I re-enter, it is void, for the feoffee took the estate by my feoffment, and not by law. And if the feoffees enfeoff one without consideration, it is the first use unless it be without notice; but if upon consideration without notice the use is changed, and if with

contra for this aniver in special

Dower ad c.ve

notice, though upon consideration, the first use remains; and this is the ot so, bet ge

diversity.

BRUDENELL, J. to the contrary.1

ANONYMOUS.

COMMON PLEAS.

1522.

[Reported Bro. N. C. by March, 89.]

A MAN makes a feoffment in fee, to four, to his use, and the feoffees St Ruch z make a gift in tail without consideration, to a stranger, who had not bee conusance of the first use, habend. in tail, to the use of cestui que ion of ten.. use, and his heirs; the tenant in tail shall not be seised to the first Caill. use, but to his own use, for the Stat. of Westm. 2, cap. 1, wills, quod voluntas donatoris in omnibus observetur; that a man ought to refer his will to the law, and not the law to his will: Also none can be

1 The opinion of Brudenell, J. is omitted.

Cont becauseised to the use of another, but he which may execute an estate to Es could not cestui 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, 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 betwixt 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, though a use be expressed to the use of the donor, or lessor, yet this is a consideration that the donee or lessee 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 consideration 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 emptores 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 consideration in itself. And by NORWICH, [J.] 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

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

lensere

feoffee. In fact, therefore, there never was a vacancy in the tenure. But the ownership Beneficial
and beneficial property of the land being absolutely vested in the cestui que use, there not bubject
was no point of connection, between him and the lord. Besides, when a feoffment was to wiedents
made to uses, it seldom happened, that, the feoffment was made to a single person. The
feoffees were numerous, and when their number was reduced to that of one or two per-
sons, a new feoffment was made to other feoffees, to the subsisting uses.
In the mean-
time, 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 lord. Now, where a
person took by purchase, the lord was only entitled to the trifling 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 ex-
tirpate 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 observa-
ble, that the senatus consultum Trebonianum gave the same right of action against the
hæres 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 subpoena 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 or dower, or by the courtesy of a feoffee, or the lord entering upon the possession by escheat, 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

this realm, lands tenements and hereditaments be not devisable by tes-15 05
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 performed the feudal duties; his wife was entitled to dower; his infant heir was in wardship 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 di27 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 thenceforth 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 subpoena 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 feqffee, between whom and the cestui que use, therefore, 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 subpoena 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.