duced, yet none of them were found effectual to remedy the evil. I shall now consider the requisites to be observed in raising uses. (1.) There should have been a person or persons capable of standing seised to a use. Generally every common person not incapacitated to take, by way of grant, could stand seised to a use: and, therefore, a feme covert, or an infant, might have stood seised to a use a. A use was before described to be a trust or confidence, which was not issuing out of land, but as a thing collateral, annexed in privity to the estate, and to the person touching the land. It follows from this explanation of a use, that whenever the legal estate vested in a person, in whom the confidence of person, or privity of estate failed, the use was either destroyed, or for a time suspended. SECT. IX. The requisites to be observed. in raising uses. (62.) A person capaseised to a use. ble of standing (63.) Therefore, a lord by escheat, or of a villein, As to privity of could not stand seised to a use; because the estate, title of the lord accrued to him either by reason of the seignory of the land, or of the villein; which title was higher than the use, Ba. Uses, 58. Bro. Feof. al. Uses, p. 51. Shep. T. 516 SECT. IX. The requisites to be observed raising uses. (64.) Confidence of person. or confidence, and therefore could not be subject to it. And the same rule applied to a lord, who entered for mortmain, or who recovered by a cessavit, &c. for his title was paramount to the use b. Tenant by the curtesy could not stand seised to a use; for he was in by the act of law in consideration of marriage, and was not in in privity of estate. And it seems, by the better opinion, that a tenant in dower could not stand seised to a used; and that for the same reason. This point, however, has been doubted by Gilbert, though he seems to acquiesce in it in another place. So neither could a disseisor, abator, nor intruder, stand seised to a use, although he had notice. So if a feoffee to uses had bound himself in a statute, &c. and the conuzee had taken out execution thereupon, he would have held the Iand discharged of the uses. Although there had been privity of estate, yet if confidence, either expressed, or implied, failed in the person, the use was destroyed, or suspended. Thus, if a feoffee to uses had for a valuable consideration enfeoffed another, who had no notice of the former uses, there was privity of estate, but no confidence in mer uses, If there had been tenant for life, remainder in fee to the use of another, and the tenant for life had made a feoffment to one, who had notice; the feoffee could not have stood seised to the former use; for that use was annexed to one estate, and he was in of another1 The king could not stand seised to a use; and therefore if lands had been conveyed to the king and a subject, pour term de leur vies, to certain uses, such uses were void as to a moiety of the lands m. Neither could the queen be a feoffee to uses ". h1 Co. 122. b. Abbot of Bury v. Bokenham, Dy. 8, 33 Hen. 6. 16. 1 Co. 122. b. Plowd. 351. Year Book 5 Ed. 4. 7. m Year Book 7 Ed. 4. 17. Ba. Uses, 56, 57. Berkley's case. Plowd. 238. (e). See the cases collected in notes to pl. 4. in 22 Vin.: 182. n Bac. Uses, 57. SECT. IX. The requisites to be observed in raising uses. (65.) E S SECT. IX. The requisites to be observed in raising uses. (66.) A person ca A corporation, abbé, mayor, commonalty, and persons attainted, were under the like disability. So in a case, where an alien and another person were enfeoffed to uses, the crown became entitled to a moiety of the land discharged of the uses P. I have already stated the grounds and authorities, upon which I conclude, that neither tenant in tail, for life, nor years, could stand seised to a use. It must be added, that an occupant should not stand seised to a use ¶. (2.) There should have been a person caing or taking the pable of receiving or taking the use. pable of receiv usc. As to this point it may be observed, that all persons capable of taking a conveyance of the lands, might have taken the same estate by way of use; therefore the limitation of a use to a corporation was good, if a license for that purpose had been obtained". So the king could have been cestuique use by matter of record; and therefore if a fine had been levied, or recovery suffered, and the use declared to the king by deed inrolled, the king would have been entitled as cestuique use, though he was not a party to the declaration. But it was absolutely necessary, that both the declaration and conveyance should be matter of record. of The limitation of a use to the parishioners Whether an alien could have been cestuique use was an undetermined point; some holding, that a use, being merely in conscience, equity might have directed the execution of it for the benefit of the alien; whilst others contended, that an alien could not have compelled the feoffees to execute the use; it being contrary to the policy of the law of the kingdom, that an alien should plead or be implead ed touching lands in any of our courts ", or declaration of the use. (5.) There should have been either a consi- A consideration deration to raise, or a declaration of, the use. Indeed, where an express declaration of the Bac. Uses, 60. Year Book 13 Hen. 7. 9. b. Bro. Feof, al. Uses, 29. Shep. T.509. See 22 Vin. 247. (E. a.) 12 Hen. 7. 28. a. Bro. Feof. al. Uses, pl. 29.. Allen, 14. Vide Preamble to the Stat. 27 Hen, 8. o. 10. |