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Sir, conscience does not make the use, but common reason which is common law, which is indifferent to all laws spiritual and temporal ; and, Sir, although common reason says that if I enfeoff one without consideration, this shall be to my use, still this land shall be in the feoffee like any other land and take the same conrse : for if he has a wife and dies, his wife shall have dower to her own use, for here there is no act of the feoffee and she does not claim by the feoffee, but the law makes her estate; and so if he is bound in a statute merchant; and so in case of a lord taking by escheat, for in these cases there was no act by the fcoffee, to deceive or defraud the feoffor, but it was done by order of the law. And, Sir, the notice as here is the important matter, for if there was no notice there would be no use, but if he has notice, he is particeps criminis.
POLLARD, J. to the same intent. As has been said uses were at the common law and are nothing more than confidence and trust, and the feoffee is bound to act according to the trust, otherwise he would deceive his feoffor, which would not be reason. And there is a diversity when there is a default in the feoffee in deceiving the feoffor, and when not, for if the feoffee die his wife shall have dower, and so in case of a statute merchant or escheat, for there is no default in feoffee, but the operation of law. But the default is in me, and although my feoffee is bound in a statute merchant, still can enter and make a feoff'ment and the execution is discharged. And so if my feoffee endowed his wife ad ostium ecclesiæ and I re-enter, it is void, for the feoffee took the estate by my feoffment, and not by law. And if the feoffees enfeoff one without consideration, it is the first use unless it be without notice ; but if upon consideration without notice the use is changed, and if with notice, though upon consideration, the first use remains; and this is the diversity
BRUDENELL, J. to the contrary.
COMMON PLEAS. 1522.
(Reported Bro. N. C. by March, 89.] A MAN makes a feoffment in fee, to four, to bis use, and the feoffees make a gift in tail without consideration, to a stranger, who had not conusance of the first use, habend. in tail, to the use of cestui que use, and his heirs ; the tenant in tail shall not be seised to the first use, but to his own use, for the Stat. of Westm. 2, cap. 1, wills, quod voluntas donatoris in omnibus observetur; that a man ought to refer his will to the law, and not the law to his will: Also none can be seised to the use of another, but he which may execute an estate to cestui que use, which shall be perfect in law, which tenant in tail cannot do; for if he executes an estate, his issue shall have a for. medon ; and the best opinion [is] that an abbot, mayor and commonalty, nor other corporations shall not be seised to a use, for their capacity is only to take to their own use: and also if the abbot execute an estate, the successor shall have a writ of entry sine assensu capituli : and those that are in the post, as by escheat, mortmain, perquisite of villein, recovery, dower, curtesy, and the like, are seised to their own use and not to another use: and also the Stat. of 1 R. 3, is, That all gifts, feoffments & grants of cestui que use shall be good against all, &c. saving to all persons their rights and interests in tail, as if this Stat. had not been made ; and therefore tenant in tail shall not be seised to a use. And ’t was agreed by the court, That the words in the end of the Stat. of 1 R. 3, saving such right and interest to the tenant in tail, &c. is taken tenant in tail in possession; and not tenant in tail in use: for cestui que use in tail hath no right nor interest. And also here there is a tenure betwist the donors and the donees, which is a consideration that the tenant in tail shall be seised to his own use : and the same law of tenant for term of years, and tenant for life, their fealty is due; and where a rent is reserved, there, though a use be expressed to the use of the donor, or lessor, yet this is a consideration that the donee or lessee shall have it to bis own use : and the same law where a man sells his land for £20 by indenture, and executes an estate to his own use; this is a void limitation of the use : for the law by the consideration of money, makes the land to be in the vendee.
1 The opinion of Brudenell, J. is omitted.
Et opinio fuit, That a use was at common law before the Stat. of Quia emptores terrarum, but uses were not common before the same Stat. For upon every feoffment before this Stat. there was a tenure betwixt the feoffors and the feoffee; which was consideration, that the feoffee shall be seised to his own use; but after this Stat. the feoffee sball hold de capitali domino, and there is no consideration betwixt the feoffor and the feoffee without money paid, or other especial matter declared, for which the feoffee shall be seised to his own use : for where the Stat. of Marlebr. is, that a feoffment by the father, tenant in chivalry, made to his son by covin, shall not toll the lords ward, &c. In these cases the feoffor after such feoffment takes the profits of the land all his life. And the same law by SHELLEY (J.] of a feoffment made by a woman to a man to marry her, the woman takes the profits after the espousals : Quære inde ; for this is an express consideration in itself. And by NORWICH, [J.] If a man deliver money to J. S. to buy land for him, and he buys it for himself, & to his own use, this is to the use of the buyer, and not to the use of him who delivered the money; and there is no other remedy but an action of deceit.
1 “But one of the most important circumstances, in the history of the decline of the feud, is, the introduction of uses. By these the legal estate of the land was in the
feoffee. In fact, therefore, there never was a vacancy in the tenure. But the ownership and beneficial property of the land being absolutely vested in the cestui que use, there was no point of connection, between him and the lord. Besides, when a feoffment was made to uses, it seldom happened, that, the feoffment was made to a single person. The feoffees were numerous, and when their number was reduced to that of one or two persons, a new feoffment was made to other feoffees, to the subsisting uses.
In the meantime, the ownership of the land was transmitted and aliened, at the will of the cestui que use. It is evident that, while the fief was held in this manner, there was a wide separation between the lord and the tenant. It must also be observed, that, where there was a feoffment to uses, the fruits of tenure incident to purchase, became seldom due, and those incident to descent almost never accrued to the lord. Now, where a person took by purchase, the lord was only entitled to the trifling acknowledgment of relief: when he came in by descent, the lord was entitled to the grand fruits of military tenure, wardship, and marriage. From these observations, it is clear, how great a fraud was practised upon the lord, by the introductiou of uses. A fief thus circumstanced, presenteil an apparent tenant to the lord, but it was almost barren of every fruit and advantage of tenure, and the land itself was entirely subtracted from the feud. Hence we find, that, among the mischiefs recited in the preamble to the Statute of Uses, the loss to the lord, of the fruits of tenure, is particularly insisted on. It does not fall within the nature of these observations, to mention the steps which were taken to extirpate uses. One of them was the Statute of the 1 Richard the 2d. cap. 9, which gave all action to the disseisee, both against the feoffee, and the cestui que use. It is observable
, that the senatus consultum Trebonianum gave the same right of action against the hreres fidei commissarius. Unquestionably the object of the Statute of the 27 of Henry 8 was to effect a total extirpation of uses. Co. Lit. 191 a. Butler's note, VI. 11.
** The introduction of Uses produced a great revolution in the transfer and modification of landed property. Without entering into a minute discussion of the difference between uses at common law, and uses since the Statute of 27 H. 8, – a point, particularly well explained in Mr. Sanders's Essay on Uses and Trusts, it is sufficient to state the following circumstances. Uses at the common law were, in most respects, what trusts
When a feoffment was made to uses, the legal estate was in the feoffee. He filled the possession, did the feudal duties, and was, in the eye of the law, the tenant of the fee. The person to whose use he was seised, called by the law.writers the cestuy que use, had the beneficial property of the lands, had a right to the profits, and a right to call upon the feoffee to convey the estate to him, and to defend it against strangers. This right at first depended on the conscience of the feoffee: if he withheld the profits from the cestuy que use, or refused to convey the estate as he directed, the cestuny que use was without remedy. To redress this grievance, the writ of subpæna was devised, or rather adopted from the common-law courts, by the Court of Chancery, to oblige the feoffee to attend in court, and disclose his trust, and then the court compelled him to execute it. Thus uses were established. -- They were not considered as issuing out of, or annexed to the land, as a rent, a condition, or a right of common ; but as a trust reposed in the feoffee, that he should dispose of the lands, at the discre. tion of the cestuy que use, permit him to receive the rents, and, in all other respects, to have the beneficial property of the lands. Yet an use, though considered to be neither issuing out of, or annexed to the land, was considered to be collateral to it, or rather as collateral to the possession of the feoffees in it, and of those claiming that possession under them. Hence the disseisor, abator, or intruder of the feoffre, or the tenant in dower, or by the courtesy of a feoffee, or the lord entering upon the possession by escheat, were not seised to an use, though the estates in their hands were subject to rents, commons and conditions. They were considered as coming in by a paramount and extraneous title ; or, as it is called in the law, in the post, in contradistinction from those who, claiming under the feoffee, were said to be in the per. Thus, between the feoffee and cestui que use, there was a confidence in the person and privity in estate. (See Chudleigh's Case, 1 Rep. 120, and Burgess and Wheate, 1 Bla. 123.) But this Was only between the feoffee and cestui que use. To all other persons the feoffee was as SECTION II.
STATUTE OF USES.
St. 27 HEN. VIII. (1536) c. 10. Where by the common laws of this realm, lands tenements and hereditaments be pot devisable by testament, (2) nor ought to be transferred from one to another, but by solemn livery and seisin, matter of record, writing sufficient made bona fide, without covin or fraud ; (3) 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
much the real owner of the fee, as if he did not hold it to the use of another. He performed the feudal duties ; his wife was entitled to dower ; his infant heir was in ward. ship to the lord ; and, upon his attainder, the estate was forfeited. To remedy these inconveniencies, the Statute of 27 H. 8 was passed, by which the possession was divested, out of the persons seised to the use, and transferred to the cestuis que use. For, by that Statute, it is enacted, that, 'when any person shall be seised of any lands to the use, confidence, or trust of any other person or persons, by reason of any bargain, sale, feoffment, fine, recovery, contract, agreement, will, or otherwise : then, and in every such case, the persons having the use, confidence, or trust, should from thenceforth be deemed and adjudged in lawful seisin, estate, and possession of and in the lands, in the same quality, manner, and form, as they had before in the use.
"" Co. Lit. 271 b, Butler's note, II.
“Down to the time of Hen. VI., the cestui que trust could only proceed in the Court of Chancery against the feoffee in trust himself; indeed it was insisted by the common law judges in the reign of Edw. IV., that a subpæna did not lie against the heir of the trustee; afterwards, by universal consent, it was extended to his heir, and then to alienees with express notice of the trust, or without valuable consideration, in which case notice was implied. But a purchaser of the legal estate for valuable consideration bona fide, without notice, might then, as now, hold the land discharged of any trust or confidence; the only remedy was against the feoffee, or his executor if the feoffee were dead.
“ If the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for the escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, was liable to perform the trust, because they were not parties to the transaction, but came in by act of law, or in the post, and not in the per, as it was said, though doubtless their title in reason was no better than that of the heir against whom the remedy was extended. It was the same as regards any other person who obtained possession, not claiming by any contract or agreement with the feoffee, between whom and the cestui que use, therefore, there was no privity. “Where there was no trust, there could be no breach of trust.' The remedy against a disseisor, therefore, was not in chancery at the instance of the cestui que trust, but at law at the instance of the feoffee ; and it was part of his duty to pursue his legal remedies at the desire of the cestui que trust.
As regards the cestui que trust also, privity was in some sense essential to his obtain. ing relief ; thus, on the death of the original cestui que trust, in the case of a simple trust or use, the right to sue a subpoena was held to descend to the heir as representing his ancestor ; but neither a wife, a husband, nor judgment creditor was entitled to this privilege.” 1 Spence Eq. Jur. 445.
by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents and trusts; (4) and also by wills and testaments, sometime made by nude parols and words, sometime by signs and tokens, and sometime 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 scantly had any good memory or remembrance; (5) 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; (6) by reason whereof, and by occasion of which fraudulent feoffments, fines, recoreries, and other like assurances to uses, confidences and trusts, divers and many heirs have been unjustly at sundry times disinherited, the lords have lost their wards, marriages, reliefs, harriots, escheats, aids pur fair fils chivalier & pur file marier, (7) 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 executions for their rights, titles and duties ; (8) also men married have lost their tenancies by the curtesy, (9) women their dowers, (10) manifest perjuries by trial of such secret wills and uses have been committed ; (11) the King's Highness hath lost the profits and advantages of the lands of persons attainted, (12) and of the lands craftily put in feoffmerfts to the uses of aliens born, (13) and also the profits of waste for a year and a day of lands of felons attainted, (14) and the lords their escheats thereof; (15) and many other inconveniencies 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 ; (16) for the extirping and extinguishment of all such subtle practiced 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: (17) 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 seised, 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 politick, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or otherwise, by any manner means whatsoever it be; that in every such case, all and every such person and persons, and bodies politick, that have or hereafter shall have any such use, confidence or trust, in fee simple, fee tail, for term of life or for years, or otherwise, or any use, confidence or trust, in remainder or