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by Stephen mele of certain land 150 which
six months next previous to the last day of July, as required by St. 2 Wm. IV. c. 45, § 26; and on this ground the revising barrister disallowed the claim.
Joshua Williams, for the appellant.
ERLE, C. J. I am of opinion that the revising barrister is wrong, and that the claimant is entitled to be registered. He claimed to have been in the actual possession of a share of a rent-charge for six calendar months before the 31st of July; and it appears that more than six months before that day a rent-charge of £50 which had been created by the owners in fee simple of certain land in Pendleton in 1839, was conveyed by Stephen Heelis, to whom it had come by various mesne assignments, to John Heelis and his heirs, to the use of the claimant and five other persons as tenants in common. No payment on account of the rent-charge was due or paid to the claimant and the other five persons until after the 24th of June, 1864. and, if it had been the case of a conveyance at common law, without the aid of the Statute of Uses, it is clear from Hayden, app., The Overseers of Twerton, resp., 4 C. B. 1; 1 Lutw. Reg. Cas. 510, that there would have been no actual receipt of the rent-charge so as to entitle the claimant to be registered. But the conveyance under which the party claims here is a conveyance operating by the Statute of Uses; and the 1st section of that Statute enacts, that, where any person shall be seised of (amongst other things) any rent, &c., in trust for any other person, &c., the cestui que trust shall have lawful seisin and possession of the same. The Statute 2 W. 4, c. 45, $ 26, enacts that no person shall be registered in any year in respect of his estate or interest in any lands or tenements, &c., unless he shall have been in the actual possession thereof, or in the receipt of the rents and profits thereof, for his own use, for six calendar months, &c. The 27 H. 8, c. 10, § 1, says, that, where any person is seised of a rent to the use of any other person, the person who has the use shall stand seised in possession of such rent to all intents and purposes in the law. I am of opinion that the word “ possession " has a technical meaning, and that the Legislature in the time of Henry 8 and the Legislature in the time of William 4 attached the same meaning to the words “ actual possession," and that a conveyance under the 27 H. 8, c. 10, gives the cestui que use the actual possession which is required to constitute a qualification under the 2 W. 4, c. 45, $ 26. It is said that the merely interposing an use is an evasion of the Statute. But I attach no weight to that argument, because the two cases which have held that actual receipt of the rent is essential to perfect the right to be registered, show that the handing over anything in the name of the rent would afford less facility of proof than the production of a deed operating by virtue of the Statute of Uses, which has been put in practice thousands of times since the time of Henry 8. So far, therefore, as regards the Statute. Then, as to the authorities, Mr. Williams has invited our attention to some which are
* in respec shall have and profit
entitled to the very highest respect. In Anonymous, Cro. Eliz. 46, is a resolution of divers justices that cestui que use at this day is immediately and actually seised and in possession of the land, so as he may have an assise or trespass before entry against a stranger who enters without title; and this by the words of the 27 H. 8, c. 10, viz., " that cestui que use shall stand and be seised,” &c. And, though the report is short, it is not the less valuable, for, often in the reports of that day the most important propositions are laid down in four or five lines, and certainly lose no force by reason of their conciseness. Then, again, we have Bacon's Readings upon the Statute of Uses, which is also entitled to very great respect. So, Chief Baron Comyns, whose great work stands high in the estimation of every one in the profession, and who is the universal referee for almost every proposition, lays it down, — title Uses (I.), – that, “ by the Statute 27 H. 8, c. 10, cestui que use is immediately seised and in actual possession, and therefore shall have assise or trespass against a stranger before entry ;” adopting the dictum in Cro. Eliz. 46. Then we have the authority of Co. Lit. 315 a, and Butler's note, which seems to me to involve the whole of the learning contained in the judgment of Tindal, C. J., in Murray, app.,
Thorniley, resp., 2 C. B. 217; 1 Lutw. Reg. Cas. 496. Butler's note points out the distinction between the conveyance of a rent at common law and the limitation of a rent as an use under the Statute. Then, I take notice of that which is not strictly authority, viz., Cruise's Digest, vol. 3, p. 274, § 15, and Burton's Compendium of the Law of Real Property, § 1116; and I think I am warranted in so doing, since it is a main ground of Lord Eldon's judgment in the Britton Ferry Case that the practice of conveyancers is to be taken notice of by those who administer the law, — a very wise and salutary principle ; for, according to my experience, the persons intrusted with that branch of the law have ever been remarkable for ability and learning : and the argument which we have heard this day satisfies me that the mantle of those great meri has not descended upon unworthy shoulders.
KEATING, J. I also am of opinion that the decision of the revising barrister in this case was wrong ; but I feel bound to add, that, if I had been called upon to decide the point, unaided by the light of the
able argument we have heard this day, I should have come to the same umrles conclusion. Mr. Williams has satisfied me that there is a clear dis
tinction between the grant of a rent-charge at common law and a grant Cor 15 igog
operating by virtue of the Statute of Uses. The 26th section of the Reform Act enacts that no person shall be registered in any year in respect of his estate or interest in any lands or tenements, as a freeholder, &c., unless he shall have been in the actual possession thereof, or in the receipt of the rents and profits thereof, for his own use, for six calendar months at least next previous to the last day of July in such year. In Murray, app., Thorniley, resp., 2 C. B. 217; 1 Lutw. Reg. Cas. 496, it was held that a grant of a rent-charge at common law did not give the grantee a right to be registered under that provision
unless he had been in actual receipt of the rent for the prescribed period. The Chief Justice founds his judgment in that case upon the very authorities which have been brought before us to-day. He cites the 235th section of Littleton: “And so it is, if a man grant by his deed a yearly rent issuing out of his land to another, &c., if the grantor thereafter pay to the grantee a penny or a halfpenny in name of seisin of the rent, then, if after the next day of payment the rent be denied, the grantee may have an assise, or else not, &c.” Lord Coke, exemplifying his own doctrine that there is often virtue in an etcetera, explains what that means, thus: “ By this &c. is implied that the grant and delivery of the deed is no seisin of the rent; and that a seisin in law, which the grantee hath by the grant, is not sufficient to maintain an assise or any other real action, but there must be an actual seisin." Mr. Williams admits that the actual possession spoken of in the Reform Act must be such an actual possession as would have entitled the party to maintain an assise. Then we find from the Anonymous Case in Cro. Eliz. 46, - which certainly derives additional authority from being cited by Chief Baron Comyns, — that, “ by the Statute 27 H. 8, c. 10, cestui que use is immediately seised and in actual possession, and therefore shall have assise or trespass against a stranger before entry.” That therefore brings this case precisely within the ground upon which Mur. ray, app., Thorniley, resp., was decided, and establishes the distinction between the grant of a rent-charge at common law, and a grant under the Statute of Uses. Upon these grounds I am of opinion that the revising barrister took an erroneous view of this case, and consequently that his decision must be reversed.
Williams asked for costs.
ERLE, C. J. Where the decision is in favour of the appellant, no costs are allowed. But, where the decision is in favour of the respondent, the general rule is to give him his costs, — the court reserving to itself the right to modify the rule as the circumstances of each case may seem to them to render it expedient."
i See Hadfield's Case, L. R. 8 C. P. 306.
Note. - Scintilla Juris. “The mode of operation of the Statute with future uses, Peek when limited by way of contingent remainders or as springing or shifting uses, formerly caused much perplexity and difference of opinion. The Statute seemed to ex. haust the seisin in serving the prior vested uses, so as to leave none to serve such future uses as and when they should arise. To meet this difficulty it was conceived that there remained in the grantees to uses a possibility of seisin, becoming an actual seisin when the executory uses required it. This was the celebrated doctrine of the scintilla juris, as this possibility of seisin was called. The only practical bearing of this doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner to risk the safety of the dependent uses.
“After much abstruse speculation concerning the nature of the statutory process, the result generally accepted seems to have been that it immediately converted uses of all admissible kinds into legal limitations in a manner quite beyond the power or control of the grantees to uses, and that the latter were merely formal instruments for carrying the legal title to the uses.” Leake, Dig. Land Law, 116.
See Sugd. Pow. (7th ed.) c. 1, $ 3.
USES NOT EXECUTED BY THE STATUTE. I talute does
NOTE. 1544. no execute
[Reported Bro. Ab. Feoff. al Uses, 52.] 1. a Trust
A man makes a feoffment in fee to his own use for the term of his life, and that after his decease J. N. shall take the profits ; this makes a use in J. N. Otherwise if he says that after his death, the feoffees shall take the profits and deliver them to J. N., this does not make a use in J. N., for he never has them unless by the hands of the feoffees.
(Reported Dyer, 155.] 2. A use upon
(JANE TYRREL, widow, for the sum of four hundred pounds paid by amar.
G. Tyrrel her son and heir apparent, by indenture enrolled in chancery in the 4th year of E. 6, bargained, sold, gave, granted, covenanted, and concluded to the said G. Tyrrel all her manors, lands, tenements, &c. to have and to hold the said &c. to the said G. T. and his heirs for ever, to the use of the said Jane during her life, without impeachment of waste; and immediately after her decease to the use of the said G. T. and the heirs of his body lawfully begotten, and in default of such issue, to the use of the heirs of the said Jane for ever. Quære well whether the limitation of those uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facic? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the enrolment, &c. And this case has been doubted in the Common Pleas before now: ideo quære legem. But all the judges of C. B. and SAUNDERS, Chief Justice, thought that the limitation of uses above is void, &c. for suppose the Statute of Enrolments (cap. 16] had never been made, but only the Statute of Uses, (cap. 10] in 27 H. 8, then the case above could not be, because an use cannot be engendered of an use, &c. See M. 10 & 11 Eliz. † fol.