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entitled to the very highest respect. In Anonymous, Cro. Eliz. 46, is a resolution of divers justices 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 a stranger who enters without title; and this by the words of the 27 H. 8, c. 10, viz., “ that cestui que use shall stand and lie seised,” &c. And, though the report is short, it is not the less valuable, for, often in the reports of that day the most important propositions are laid down in four or five lines, and certainly lose no force by reason of their conciseness. Then, again, we have Bacon's Readings upon the Statute of Uses, which is also entitled to very great respect. So, Chief Baron Comyns, whose great work stands high in the estimation of every one in the profession, and who is the universal referee for almost every proposition, lays it down, title Uses (I.), – that, “ by the Statute 27 H. 8, c. 10, cestui que use is immediately seised and in actual possession, and therefore shall bave assise or trespass against a stranger before entry;" adopting the dictum in Cro. Eliz. 46. Then we have the authority of Co. Lit. 315 a, and Butler's note, which seems to me to involve the whole of the learning contained in the judgment of Tindal, C. J., in Murray, app, Thorniley, resp., 2 C. B. 217; 1 Lutw. Reg. Cas. 496. Butler's note points out the distinction between the conveyance of a rent at common law and the limitation of a rent as an use under the Statute. Then, I take notice of that which is not strictly authority, viz., Cruise's Digest, vol. 3, p. 274, § 15, and Burton's Compendium of the Law of Real Property, $ 1116 ; and I think I am warranted in so doing, since it is a main ground of Lord Eldon's judgment in the Britton Ferry Case that the practice of conveyancers is to be taken notice of by those who administer the law, -- a very wise and salutary principle ; for, according to my experience, the persons intrusted with that branch of the law have ever been remarkable for ability and learning: and the argument which we have heard this day satisfies me that the mantle of those great men has not descended upon unworthy shoulders.
KEATING, J. I also am of opinion that the decision of the revising barrister in this case was wrong; but I feel bound to add, that, if I had been called upon to decide the point, unaided by the light of the able argument we have heard this day, I should have come to the same conclusion. Mr. Williams has satisfied me that there is a clear distinction between the grant of a rent-charge at common law and a grant operating by virtue of the Statute of Uses. The 26th section of the Reform Act enacts that no person shall be registered in any year in respect of his estate or interest in any lands or tenements, as a freeholder, &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 at least next previous to the last day of July in such year. In Murray, app., Thorniley, resp., 2 C. B. 217;:1 Lutw. Reg. Cas. 496, it was held that a grant of a rent-charge at common law did not give the grantee a right to be registered under that provision unless he had been in actual receipt of the rent for the prescribed period. The Chief Justice founds his judgment in that case upon the very authorities which have been brought before us to-day. He cites the 235th section of Littleton: “And so it is, if a man grant by his deed a yearly rent issuing out of his land to another, &c., if the grantor thereafter pay to the grantee a penny or a halfpenny in name of seisin of the rent, then, if after the next day of payment the rent be denied, the grantee may have an assise, or else not, &c.” Lord Coke, exemplifying his own doctrine that there is often virtue in an etcetera, explains what that means, thus : “ By this &c. is implied that the grant and delivery of the deed is no seisin of the rent; and that a seisin in law, which the grantee hath by the grant, is not sufficient to maintain an assise or any other real action, but there must be an actual seisin.” Mr. Williams admits that the actual possession spoken of in the Reform Act must be such an actual possession as would have entitled the party to maintain an assise. Then we find from the Anonymous Case in Cro. Eliz. 46, - which certainly derives additional authority from being cited by Chief Baron Comyns, that, “ by the Statute 27 H. 8, c. 10, cestui que use is immediately seised and in actual possession, and therefore shall have assise or trespass against a stranger before entry.” That therefore brings this case precisely within the ground upon which Murray, app., Thorniley, resp., was decided, and establishes the distinction between the grant of a rent-charge at common law, and a grant under the Statute of Uses. Upon these grounds I ain of opinion that the revising barrister took an erroneous view of this case, and consequently that his decision must be reversed.
Williams asked for costs.
Erle, C. J. Where the decision is in favour of the appellant, no costs are allowed. But, where the decision is in favour of the respondent, the general rule is to give him his costs, – the court reserving to itself the right to modify the rule as the circumstances of each case may seem to them to render it expedient.
See Hadfield's Case, L. R. 8 C. P. 306. Note. Scintilla Juris. “The mode of operation of the Statute with future uses, when limited by way of contingent remainders or as springing or shifting uses, formerly caused much perplexity and difference of opinion. The Statute seemed to exhaust the seisin in serving the prior vested uses, so as to leave none to serve such future uses as and when they should arise. To meet this difficulty it was conceived that there remained in the grantees to uses a possibility of seisin, becoming an actual seisin when the executory uses required it. This was the celebrated doctrine of the scintilla juris, as this possibility of seisin was called. The only practical bearing of this doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner to risk the safety of the dependent uses.
“After much abstruse speculation concerning the nature of the statutory process, the result generally accepted seems to have been that it immediately converted uses of all admissible kinds into legal limitations in a manner quite beyond the power or control of the grantees to uses, and that the latter were merely formal instruments for carrying the legal title to the uses.” Leake, Dig. Land Law, 116.
See Sugd. Pow. (7th ed.) c. 1, $ 3.
USES NOT EXECUTED BY THE STATUTE.
(Reported Bro. Ab. Feoff. al Uses, 52.) A MAN makes a feoffment in fee to his own use for the term of liis life, and that after his decease J. N. shall take the profits ; this makes a use in J. N. Otherwise if he says that after his death, the feoffees shall take the profits and deliver them to J. N., this does not make a use in J. N., for he never has them unless by the hands of the feoffees.
[Reported Dyer, 155.)
JANE TYRREL, widow, for the sum of four hundred pounds paid by G. Tyrrel her son and heir apparent, by indenture enrolled in chancery in the 4th year of E. 6, bargained, sold, gave, granted, covenanted, and concluded to the said G. Tyrrel all her manors, lands, tenements, &c. to have and to hold the said &c. to the said G. T. and his heirs for ever, to the use of the said Jane during her life, without impeachment of waste; and immediately after her decease to the use of the said G. T. and the heirs of his body lawfully begotten, and in default of such issue, to the use of the heirs of the said Jane for ever. Quere well whether the limitation of those uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facie? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the enrolment, &c. And this case has been doubted in the Common Pleas before now: ideo quære legem. But all the judges of C. B. and SAUNDERS, Chief Justice, thought that the limitation of uses above is void, &c. for suppose the Statute of Enrolments (cap. 16] had never been made, but only the Statute of Uses, (cap. 10] in 27 H. 8, then the case above could not be, because an use cannot be engendered of an use, &c. See M. 10 & 11 Eliz. † fol.
Bacon, Uses, 42. The second word material is the word seised: this excludes chattels. The reason is, that the Statute meant to remit the common law, Chattels might ever pass by testament or by parol; therefore the use did not pervert them.
[Reported 13 Co. 54.] JOHN SAMMES being seised of Grany Mead by copy of court roll of the manor of Tollesham the Great, of which Sir Thomas Beckingham was lord, and held the same of the king by knight's service in capite; Sir Thomas by his deed indented, dated the 22d of December, in the first year of King James, made between him of the one part, and the said John Sammes and George Sammes son and heir apparent of the said John of the other part, did bargain, sell, grant, enfeoff, release, and confirm unto the said John Sammes the said mead called Grany Mead, to have and to hold the said mead unto the said John Sammes and George Sammes, and their heirs and assigns, to the only use and behoof of the said John Sammes and George Sammes, their heirs and assigns forever: and by the same indenture Sir Thomas did covenant with John and George, to make further assurance to John and George, and their heirs, to the use of them and their heirs, and livery and seisin was made and delivered, according to the true intent of the said indentures, of the within mentioned premises to the uses within mentioned.
John Sammes the father dieth, George Sammes his son and heir being within age, the question was, Whether George Sammes should be in ward to the king or no? And in this case three points were resolved :
1. Forasmuch as George was not named in the premises, he cannot take by the habendum; and the livery made according to the intent of the indenture, doth not give any thing to George, because the indenture as to him is void : but although the feoffment be good only to John and his heirs, yet the use limited to the use of John and George, and their heirs, is good.
2. If the estate had been conveyed to John and his beirs by the release and confirmation, as it well may be to a tenant by copy of courtroll, the use limited to them is good : for upon a release which creates an estate, & use may be limited, or a rent reserved without question ; but upon a release or confirmation, which enures by way of mitter le droit, an use cannot be limited, or a rent reserved.
But the third was of greater doubt, if in this case the father and son were joint-tenants, or tenants in common? For it was objected, when the father is only enfeoffed to the only use of him and his son, and their heirs in the per, that in this case, they shall be tenants in common. By the feoffment the father is in by the common law in the per, and then the limitation of the use to him and his son, and to their heirs, cannot divest the estate, which was vested in him by the common law, out of him, and vest the estate in him in the post by force of the Statute, according to the limitation of the use; and therefore as to one moiety, the father shall be in by force of the feoffment in the per, and the son, as to the other moiety, shall be in by force of the Statute, according to the limitation of the use in the post, and by consequence ther shall be tenants in common. But it was answered and resolved, that they were joint-tenants, and that the son in the case at bar should have the said grange by the survivor : for if at the common law A. had been enfeoffed to the use of him and B. and their heirs, although that he was only seised of the land, the use was jointly to A. and B. For a use shall not be suspended or extinct by a sole seisin, or joint seisin of the land : and therefore if A. and B. be enfeoffed to the use of A. and his heirs, and A. dieth, the entire use shall descend to his heir : as it appears in 13 H. 7, 6, in Stoner's Case : and by the Statute of 27 H. 8, cap. 10, of Uses, it appeareth, that when several persons are seised to the use of any of them, that the estate shall be executed according to the use.
And as to that which was said, that the estate of the land which the father hath in the land, as to the moiety of the use which he himself hatb, shall not be divested out of him: to that it was answered and resolved, that that shall well be ; for if a man maketh a feoffment in fee to one, to the use of him and the heirs of his body ; in this case, for the benefit of the issue, the Statute according to the limitation of the uses, divests the estate vested in him by the common law, and executes the same in himself by force of the Statute ; and yet the same is out of the words of the Statute of 27 H. 8, which are, where any person, &c. stand or be seised, &c. to the use of any other person ; and here he is seised to the use of himself: and the other clause is, where divers and many persons, &c. be jointly seised, &c. to the use of any of them, &c. and in this case A. is sole seised : but the Statute of 27 H. 8, hath been always beneficially expounded, to satisfy the intention of the parties, which is the direction of the use according to the rule of the law.
So if a man, seised of lands in fee-simple, by deed covenants with another, that he and his heirs will stand seised of the same land, to the use of himself and the heirs of his body, or unto the use of himself for lite, the remainder over in fee; in that case, by the operation of the Statute, the estate which he hath at the common law is divested, and a new estate vested in himself, according to the limitation of the use. And it is to he known, that an use of land (which is but a pernancy of the profits) is no new thing, but part of that which the owner of the land had; and therefore, if tenant in borough English, or a man seised of the part of his mother, maketh a feoffment to another without consideration, the younger son in the one case, and the heir on the part of the mother on