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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.
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, remainder to the right heirs male of the body of the lessor, remainder to the right heirs of the lessor for ever, the limitations to the heirs would be void, because the donor could not make his right heir a purchaser without departing with the whole fce-simple out of his person. Greswold's Case, Dy. 156 a, pl. 24. So if a man make a lease for 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 h.
"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 bas 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 hoiding 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 feofsment 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.
(Reported Cro. El. 46.] Nota 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 any stranger who enters without title, and this by the words of the 27 Hen. 8, c. 10, viz., " that cestui que use shall stand and be seised,” &c.; and this was the opinion of divers justices.
HEELIS v. BLAIN.
COMMON PLEAS. 1864.
(Reported 18 C. B. N. S. 90.) APPEAL' from the decision of a revising barrister disallowing the claim of the appellant, Arthur Heelis, to have his name retained on the list of voters for the township of Pendleton. In 1839, by indentures of lease and release, land was conveyed to Spencer in fee to the use, intent, and purpose that John Robinson, his heirs and assigns, should and might have, receive, and take from said land a yearly rent of £50, by half-yearly payments, on June 24 and December 25, and to further
Robinson, in 1862, granted the rent-charge to Stephen Heelis and his heirs; and on January 27, 1864, Stephen Heelis granted it to John Heelis and his heirs, to the use of the said John Heelis and five other persons and their respective heirs, as tenants in common. Of these persons the appellant was one.
The half-year's rent which became due June 24, 1864, being the first which became due after the execution of the indenture of January 27, 1864, was, on July 8, paid to the said John Heelis, for himself and the said five other persons, and he paid their shares over to the others at various times between July 8 and July 30. No part of the rentcharge was paid after January 27, 1864, until the rent-charge due June 24 was paid.
It was objected to the claim of the appellant that he had not been in the actual possession or in the receipt of the rent for his own use for 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.
1 This short statement is substituted for that in the report.
Joshua Williams, for the appellant.
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 Twoerton, 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