CHAPTER VII.

THE STATUTE OF USES AND ITS PRINCIPAL EFFECTS ON MODERN CONVEYANCING.

IN the last chapter the early history of uses of lands has been traced in outline. It has been seen that, originating simply in a moral or religious obligation, a use of lands became a recognised collection of rights and duties, incumbent upon and enjoyed by the legal owner and the beneficiary respectively, and capable of being asserted and enforced by the proper tribunal. In reviewing the subsequent history of uses it must be borne in mind that the tendency of philosophical thought prevailing at the period in question was to invest all abstract ideas with a real and substantial existence, to treat of them not merely as collective names for a variety of particular facts and circumstances agreeing in the points designated by the general name, but as having a real existence, apart from the particular or individual instances, and possessing definite attributes or properties necessarily inherent in their essence. These realist notions will be found to have exercised an important and pernicious influence upon the development of the law of land, which is most con spicuous in the history of uses. A use is now regarded as an abstract entity, possessing certain qualities of its own, which naturally flow from it or are inherent in it. Thus the development of the law is frequently the result of a discussion as to what these essential qualities of a use are, and when they are supposed to be ascertained by reasoning, they are made the

basis of judicial decision, all other considerations, such as expediency, or conformity to general principles of law, being thrown into the background. It must be confessed that the handling of 'uses' by the common lawyers contrasts unfavourably with the enlightened system which had been constructed by the succession of ecclesiastical chancellors.

§ I.

The Statute of Uses, 27 Henry VIII, c.10.

Before the passing of the Statute of Uses in the twentyseventh year of Henry VIII, attempts had been made to protect by legislation the interests of creditors, of the king, and of the lords, which were affected injuriously by feoffments to uses. It has already been seen that the legislature at a very early date interfered in the interest of creditors to render uses liable to be taken in execution for debt1. By 1 Richard III, c. 1, the conveyances of cestui que use were made good without assent of the feoffees 2; and by 4 Henry VII, c. 17, the lord

1 See above, p. 282.

This statute, after reciting that by privy and unknown feoffments great unsurety, trouble, costs and grievous vexations do daily grow betwixt the king's subjects, insomuch that no man that buyeth lands, tenements, rents, services, or other hereditaments, nor women which have jointure or dower in any lands, tenements, or other hereditaments, nor the last will of men to be performed, nor leases for term of life or of years, nor annuities granted to any person or persons for their services for term of their lives or otherwise, be in perfect surety, nor without great trouble and doubt of the same by reason of such privy and unknown feoffments,' enacts 'that every estate, feoffment, gift, release, grant, leases, and confirmations of lands, tenements, rents, services, or other hereditaments, made or had, or hereafter to be made or had, by any person or persons being of full age, of whole memory, at large and not in duress, to any person or persons, and all recoveries and executions had or made, shall be good and effectual to him to whom it is so made, had or given, and to all other to his use, against the seller, feoffor, donor, or grantor of the same, and against the sellers, feoffors, donors, or grantors, and his and their heirs claiming the same only as heir or heirs to the same sellers, feoffors, donors, or grantors, and every of them, and

was given the wardship of the heir. The tendency of these and similar enactments was to assimilate in some particulars the position of cestui que use to that of legal owner, to throw upon him some at all events of the burdens and liabilities attaching to the legal ownership. What imperfect success attended these attempts appears from the preamble of the Statute of Uses. The object of that Statute was by joining the possession or seisin to the use and interest (or, in other words, by providing that all the estate which would by the common law have passed to the grantee to uses should instantly be taken out of him and vested in cestui que use), to annihilate altogether the distinction between the legal and beneficial ownership, to make the ostensible tenant in every case also the legal tenant, liable to his lord for feudal dues and services,―wardship, marriage, and the rest. As will be pointed out in the next chapter, by converting the use into the legal interest the Statute did away with the power of disposing of interests in lands by will, which had been one of the most important results of the introduction of uses. Probably these were the chief results aimed at by the Statute of Uses. A strange combination of circumstances—the force of usage by which practices had arisen too strong even for legislation to do away with, coupled with an almost superstitious adherence on the part of the courts to the letter of the Statute-produced the curious result, that the effect of the Statute of Uses was directly the reverse of its purpose, that by means of it secret conveyances of the legal estate were introduced, while by a strained interpretation of its terms the old distinction between beneficial or equitable and legal ownership was revived. What may be called the modern law of Real

against all other having or claiming any title or interest in the same only to the use of the same seller, feoffor, donor, or grantor, or sellers, donors, or grantors, or his or their said heirs, at the time of the bargain, sale, covenant, gift, or grant made, saving to every person or persons such right, title, action, or interest by reason of any gift in tail thereof made, as they ought to have if this Act had not been made.'

Property and the highly technical and intricate system of conveyancing which still prevails, dates from the legislation of Henry VIII.

27 HENRY VIII, CAP. 10. AN ACT CONCERNING USES AND WILLS.

Where by the common laws of this realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another, but by solemn livery and seisin, matter of record 1, writing sufficient made bona fide, without covin or fraud, yet nevertheless divers and sundry imaginations, subtle inventions, and practices have been used, whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts, and also by wills and testaments, sometimes made by nude parolx and words, sometimes by signs and tokens, and sometimes by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have had scantly any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confidences, and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards, marriages, reliefs, harriots, escheats, aids pur fair fitz chivalier and pur file marier, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or execution for their rights, titles, and duties; also men married have lost their tenancies by the curtesy, women their dowers; manifest perjuries by trial of such secret wills and uses have been committed; the king's highness hath lost the profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffment to the uses of aliens born, and also the profits of waste for a year

That is, by process in a court of record, e.g. by fine or recovery.

and a day of lands of felons attainted, and the lords their escheats thereof; and many other inconveniences have happened, and daily do increase among the king's subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of this realm; for the extirping and extinguishment of all such subtle practised feoffments, fines, recoveries, abuses, and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the king's highness or any other his subjects of this realm, shall not in any wise hereafter, by any means or inventions be deceived, damaged, or hurt, by reason of such trusts, uses, or confidences: It may please the King's most royal Majesty, that it may be enacted by his Highness, by the assent of the Lords Spiritual and Temporal, and the Commons, in this present parliament assembled, and by the authority of the same, in manner and form following: that is to say, that where any person or persons stand, or be seised1, or at any time hereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body

2

1 In order to bring this statute into operation, one person must be seised to the use of another. Hence the first grantee must have an estate of freehold, e.g. the land must be conveyed by feoffment or otherwise to A in fee, or in tail, or for life, to the use of B. This executes the use in B, and B takes the estate limited to him by virtue of the statute, everything which would have been given to A by operation of the common law being instantly taken out of him and vested in B. On the other hand, if lands are given to A for ten years, or for any estate less than freehold, to the use of B, A is not seised to the use of B, i. e. he has not the possession as of freehold, consequently the statute does not operate, and A retains the legal interest in the term. For the same reason the words of the statute have no reference to copyhold estates.

2 Though the word that is most frequently employed to designate the beneficial interest is 'use '-e. g. feoffment to A and his heirs to the use of B and his heirs—any words expressing the same intention are sufficient to raise a 'use.' In practice however, since the revival of the jurisdiction of the Court of Chancery as explained below, the word use is commonly applied to a different species of interest to that designated by trust.

3 One person must be seised to the use of another, so if lands are conveyed to A and B and their heirs to the use of A and B and their heirs, there is here no person seised to the use of another, and consequently the