intend to provide a remedy and reformation by the continuation and preservation, but by the extinction and extirpation of uses1."

The lengthy preamble with which, like most other statutes of the reign, the Act is provided furnishes the best recital of the results which had followed the introduction of uses, and which the Statute was intended to prevent. In it is to be found a complete justification of Coke's statement"; "There were two inventors of uses, fear and fraud; fear in times of troubles and civil wars, to save their inheritances from being forfeited, and frauds to defeat due debts, lawful actions, wards, escheats, mortmains": and also of Bacon's: "that the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intents, general and special"." The preamble recites that though the common law has provided that lands should not be devisable, and should only be aliened during life by solemn livery and seisin, matter of record, yet by these fraudulent feoffments and other assurances craftily made to secret uses intents and trusts, and by wills made on their death-beds by persons unfit to make them and unduly influenced by those around them :-(1) many heirs have been unjustly disinherited: (2) Lords have lost their wardships and feudal incidents, (for if several persons held as feoffees to uses, there would never be a minority, or death of the tenant at law, and the infancy or decease of the cestui-que-use would not give rise to wardship or reliefs): (3) purchasers have no assurance of their title and no knowledge against whom to claim, (owing to the secrecy in which uses may be created): (4) husbands lose their tenancies by the curtesy and wives their dower, because neither wife nor husband is seised of the lands: (5) the trials of such secret wills and uses lead to perjury, (for as Bacon says, "there is a labyrinth of uncertainties and so continual occasion of false oaths":) (6) the king and lords lose their attainders and escheats. Wherefore it is enacted that where any person is seised to the use of another of any estate in land, the cestui

1 Chudleigh's case, 1 Co. Rep. 124, a. 2 Ibid. 121, b.

3 Bacon, p. 411.

4 27 Hen. VIII. c. 10.

5 Works, ed. Spedding, vII 627.

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OBJECTS AND RESULTS OF

que-use should be deemed to be seised of such estate in land, and that the seisin that was in the feoffee to uses should be transferred to the cestui-que-use.

In other words the doctrine of Uses had provided a complicated machinery, by which the person enjoying the benefits of the land was relieved of many of the liabilities attaching to its ownership, while the nature of the "legal owner was such that that artificial body could evade most of the legal liabilities of the owner. The Statute endeavoured to deal this system its deathblow by providing that the person really enjoying the estate should be treated as the legal owner. Thus a conveyance "to A. to the use of B.," instead of, as before, leaving A. the legal owner, and B. entitled in the Chancery to the profits of the land, converted B., the equitable owner, into the legal owner, leaving A. merely as a "conduit pipe" to pass the property to B. So a grant by A. "to B. to the use of A.," left under the Statute the legal as well as the equitable ownership in A.

The objects of the Statute seem to have been; to prevent the evils resulting from secret transfers of land, which would not arise were its ownership notorious; to practically abolish the system of uses by making them inefficacious; and probably to abolish the system by which wills of land had become possible.

Its results were very different. In the first place legal ingenuity discovered that though the Statute disposed of one use, and prevented it from having its old efficacy, its virtues were exhausted by that operation, and if a second use were created by the grant, the Statute was powerless to touch it. Thus if A. granted lands to B. to the use of C. to the use of D., the Statute made C. the legal owner, but its virtue was then exhausted, because as the metaphysical conception of a use showed, “a use cannot be engendered of a use1." C. therefore held as feoffee to uses, D. being the cestui-que-use; and as D. had no common law remedy, the Court of Chancery in interfering to protect him, reintroduced the whole doctrine of Uses. Further if the grant ran in the form "to A. upon trust to collect

1 Tyrrell's Case, Dyer's Rep. 155, a. Digby, R. P. 3rd ed. pp. 326-328, 331.

and pay the rents to B.," A. was evidently intended to be legal owner with an active duty towards B., rather than as in the case of a grant "to A. to allow B. to take the rents," a legal owner subject to a duty of forbearance. Here again the Statute did not apply, and another sphere of action was found for the Court of Chancery. From these two sources, the great doctrine of Trusts was developed.

Again, though the preamble of the Statute recited that lands ought only to be transferred by solemn livery of seisin so as to secure publicity and avoid the evils of secrecy, yet the enacting part of the Statute provided that a conveyance to the use of A. should pass the legal estate and the seisin to A. Now the Court of Chancery had already held that when B. had bargained to sell to A., and A. had paid the price, B., by this Bargain and Sale, held the land to the use of A., and with no other than a bare legal interest in it. But the Statute of Uses carried it further, for when B. held to the use of A., the legal ownership and the seisin passed at once to A., who thus became the legal owner with even less publicity than had been the case before the Statute. This evasion was too glaring to be overlooked, and in the same year, (1535) the Statute of Enrolments1 provided that no estate of inheritance or freehold should pass by any bargain and sale, unless the same should be made in writing and enrolled either in the King's Courts at Westminster, or with the clerk of the peace in the county where the lands were situated. By this means it was hoped that publicity of ownership and transfer would be assured. But the ingenuity of lawyers was as usual too crafty for the precautions of Parliament. The Statute of Enrolments only applied to "estates of inheritance or freehold"; and did not extend to estates less than freehold. If A. therefore bargained and sold or leased to B. a term of years, i.e. an interest in the land for a year or years, B. became the legal owner of that estate in the land; if A. then "released" to B. the reversion of the land, B.'s two estates would merge, and B. would become tenant in fee simple in possession. Formal and public livery of seisin would be avoided, for B. had as tenant for a term of years a sufficient

1 27 Hen. VIII. c. 16.

90

LEASE AND RELEASE.

estate in the land, and thus all securities for publicity were destroyed. This transaction, the lease and release being executed on following days, became the recognized method of conveying freehold lands inter vivos till the year 1841, when a statute was passed', which simplified the formality by allowing one deed, the release, to take the place of the two, lease and release, which the history of the introduction of the device had rendered necessary. This in its turn was superseded by the "Act to amend the Law of Real Property"" in 1845, which, by enacting that all corporeal hereditaments should be deemed to lie in grant as well as in livery, and therefore could be conveyed by a simple deed without any necessity for livery of seisin, removed the necessity for any fiction to supply the place of public livery of seisin, and allowed freehold lands to be conveyed, as incorporeal hereditaments were, by deed.

Thus the framers of the Statute of Uses in their attempt to secure publicity of transfer of land, provided machinery by which secrecy of transfer was ensured. And transfer has, except in certain counties, remained secret to this day, though the signs of the times point to a system of registration of title, which will provide publicity of ownership and of alienation, in the interests mainly of cheapness of transfer.

With the way in which the Statute was used in attempting to refetter land by the will of a dead owner by means of springing, shifting, and future uses we shall deal hereafter in considering the history of the rule in restraint of Perpetuities. But we may note that the Statute at once enabled alienations to be made which were impossible under the rules of the old Common Law. Thus a man could, by means of uses, convey a legal estate in land to his wife, a thing impossible under the common law, which forbade alienations between husband and wife inter vivos. A man could also under the statute convey lands to himself, as when three old trustees convey land to themselves and a fourth new trustee, by means of a conveyance to A. to the use of the four, a result which could only have been attained by two deeds under the common law.

1 4 and 5 Vic. c. 21.

2 8 and 9 Vic. c. 106 § 2.

3 e.g. Middlesex and Yorkshire.

4 Digby, 3rd ed. p. 312.

CHAPTER VI.

WILLS.

ANOTHER avowed object of the framers of the Statute of Uses was to abolish the power of devise of lands, which, as the preamble recites, did not exist at the common law, but had been allowed by means of uses, whereby many heirs had unjustly been disinherited. The inroad on the feudal rule which prohibited devise had been effected by means of uses declared in the following manner. The tenant enfeoffed A. into his lands to hold them to his use, until he should declare by deed or parol the uses to which they should be held; he thereafter, usually on his deathbed, declared his will as to those lands, whereupon the feoffees to uses held the lands to the uses declared in his will. By this means a practically complete power of devise was obtained, and was, in numerous reported cases, protected by the Chancellor, acting on the conscience of the feoffee. The technical result is hardly similar to a will, for the tenant is obliged to part with the legal estate in his lands before his death; it is rather akin to settlement, but differs in that the settlor does not declare or limit the settled estate till after the original feoffment, and shortly before his death.

One of the earliest recorded cases is Rothenhale v. Wychingham1 in the reign of Henry V., where the tenant enfeoffed four persons to have and to hold to them and their heirs for ever, and afterwards by a separate deed "declared his will for the disposition after his death of his lands" that the feoffees "should make full estate" of the lands to his wife for life and by way of remainder to

1 Chan. Cal. II. iii., IV. Digby, 281 n.