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ERROR upon a judgment in the Common Pleas in a writ of covenant. Two errors were assigned. First. For that a fine being levied by indenture, declared the use to be to the wife of J. S., and the Court of Common Pleas adjudged it to be an estate for life, whereas it is not so expressed. And as to that point the judgment was affirmed, for DoderIDGE said, although the fine be but as a grant, yet an estate for life may pass. Vide 1 Co. 106, Shelly's Case.1

LEAKE, DIGEST OF LAND LAW, 112, 113. The limitation of uses is not restricted by the doctrines of common law concerning the seisin; and, therefore, a use for a freehold estate may be limited to arise in futuro or upon a contingency without any prior limitation to support it as a 1. remainder. Thus a conveyance of the immediate legal possession may be made to the use of a person and his heirs, after four years, or after the death of the grantor, or to such uses as the grantor shall appoint by will. 1 Sanders on Uses, 136; Gilbert on Uses, by Sugden, 153, 161; Clere's Case, 6 Co. 18a; Davies v. Speed, 2 Salk. 675, per Holt, C. J. So, a bargain and sale might be made to the use of another after four 3 years; so, a covenant to stand seised to the use of another after the covenantor's death. Roe v. Tranmer, 2 Wils. 75; Doe v. Prince, 20 L. J. C. P. 223.

In all such cases of uses to arise in futuro, the use, being undisposed of except at the time or in the event specified, results or remains in the grantor or covenantor in fee simple as before, until the future use arises to displace it; the use does not result or remain for a particular estate only, so as to convert such limitations into remainders. Bacon on Uses, Rowe's ed., note (137); Gilbert on Uses, by Sugden, 161, 162; 1 Hayes Conv. 464, App. ii. 2, on Resulting Uses.

A future estate in the use may also be limited to take effect in substitution or defeasance of a previously limited estate, and even of an estate in fee simple; for the rules of common law, not admitting of any future limitations shifting the freehold except by way of remainder, nor of any

1 The decision on the other error assigned is omitted.

"And he [WALMESLEY, J.] said that if a man before the Statute of 27 Hen. 8 had bargained his land for money generally, without these words, 'his heirs,' the Chancellor would oblige him, according to conscience and the intent of the parties, in regard of the value, to have executed an estate in fee, and that was so long as uses were things merely in trust and confidence; but the uses since the Statute are transferred and made into an estate in the land and therefore he said that if after the Statute he bargain and sells the land to one generally for money, he hath but an estate for life." Corbet's Case, 1 Co. 83 b, 87 b. (1600).

limitations after an estate in fee simple, had no application to the use. A marriage settlement is a well-known instance of such limitations; where the use is first limited to the settlor in fee, and, upon the marriage taking place, then to the uses of the settlement. 1 Sanders Uses, 143; Gilbert on Uses, by Sugden, 153.

Future uses of the above kinds, including all such as are not limited by way of remainder, are called springing or shifting uses, the former term more especially denoting those that arise or spring up without any prior limitation; the latter denoting those that shift the use in substitution of a prior estate. Sugden's note to Gilbert on Uses, 152. Being executed by the Statute, they made a great advance upon the common law in the limitation of future estates.

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NOTE. "At common law a man could not limit a remainder to himself, nor could he limit it to his heirs, for filius est pars patris; see Champernon's Case, 4 H. 6, 19 b, pl. 6; Earl of Bedford's Case, Mo. 718. Therefore, if a lease were made to A. for life, for could. remainder to the right heirs male of the body of the lessor, remainder to the right heirsnit fave rem. of the lessor for ever, the limitations to the heirs would be void, because the donor in himsel, could not make his right heir a purchaser without departing with the whole fee-simple at law, buttout of his person. Greswold's Case, Dy. 156 a, pl. 24. So if a man make a lease for could of aussé. life, the remainder to himself in tail or in fee, the remainder is void. But as Lord C. J. Hale observed, in all cases touching uses there is great difference between a feoffment to uses, a covenant to stand seised, and a conveyance at the common law. If a man by feoffment to uses conveys lands to the use of J. S. for life, he may remit the use to himself and the heirs male of his body by the same deed, and so alter that which was before a fee-simple, and turn it into another estate; but if A. gives land to B. for life, remainder to A. and the heirs male of his body, because a man cannot give to himself, the remainder is void, for a man cannot convey to himself by a conveyance at the common law. 1 Ventr. 377, 378. And in Southcot and Stowel, 2 Mod. 207, the court held, that though at the common law a man cannot be donor and donee without he part with the whole estate, yet it is otherwise upon a conveyance to uses; and see Co. Lit. 22 b.

"The student must cautiously observe, that in these cases the rules of law still remain in full force, as applicable to common law conveyances, by which the estates are created at once, and not served out of the seisin of the feoffee. The Statute has given one conveyance the same operation which two formerly had, and therefore considering a conveyance to uses as having a double operation, the strict rules of law remain, even in regard to them. This, however, at first sight does not appear to be the case on a covenant to stand seised, for a man may covenant to stand seised to the use of himself in tail, and the use will be served out of his own seisin, and transferred into a possession by the Statute. But there is no solid distinction between this case and the others; for immediately after the execution of the covenant, equity supplies a common law conveyance by holding the covenantor himself to be a trustee, and to stand seised to the use: on this seisin the Statute attaches, and thus the use takes effect as a legal estate, although the owner did not actually depart with any portion of the estate, much less the fee out of himself. It should be remembered, that the omission of a few words in a conveyance will call this important distinction into action. If a man make a feoffment at once to A. for life, remainder to himself in tail, the deed would operate purely at common law, and the remainder would be void; but if the feoffment were made to A. and his heirs, to the use of A. for life, remainder to the feoffor in tail, the remainder would be good, - at law the entire fee-simple would vest in A., in equity A. would be seised to the uses, and the Statute operating on this seisin would clothe the uses with the legal estate." Gilb. Uses (Sugden's ed.), 150152, note.

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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.

Keane, Q. C., for the respondent.

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

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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 men has not descended upon unworthy shoulders.

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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 Mr. Williams has satisfied me that there is a clear disconclusion. tinction between the grant of a rent-charge at common law and a grant 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

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