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DENMAN, J. I am of the same opinion. The ouly question raised by the revising barrister in this case is, whether the circumstances bring it within Heelis v. Blain, 18 C. B. (N. S.) 90 ; 34 L. J. (C. P.) 88. He decided that they did ; and that, I think, was a wrong decision. Heelis v. Bluin was very carefully decided, so as to leave untouched the two previous cases of Murray v. Thorniley, 2 C. B. 217; 15 L. J. (C. P.) 155, and Hayden v. Twerton, 4 C. B. 1; 16 L. J. (C. P.) 88. I observe that Earle, C. J., in his judgment in Heelis v. Blain, Hop. & Ph. at p. 198, says:
" If it had been the case of a conveyance at common law, without the aid of the Statute of Uses, it is clear, from the cases of Murray v. Thorniley and Hayden v. Tverton, that there would have been no actual possession of the rent-charge to entitle the claimant to be registered.” The case of Heelis v. Blain certainly may be called a refined decision in favor of the franchise. was there held that “ actual possession" in § 26 of the Reform Act of 1832 is satisfied by the execution of a conveyance to uses of a rentcharge, although no part of the rent has been received. The question now is whether this was or was not a grant operating by virtue of the Statute of Uses. I am clearly of opinion that it was not. The Statute of Uses has no application where the grant is to three persons and their heirs, habendum to the same three, their heirs and assigns, to the use of the same three, their heirs and assigns for ever, as tenants in common; because they do not satisfy the words of § 1, they not being seised “ to the use of some other person or persons,” but to the use of themselves. It is said here that the Statute of Uses applies, because they are by the first part of the habendum joint-tenants, and by the limitation of uses they take as tenants in common.
I will not say
that that is an absurd argument, because it is at least as plausible an argument as some which have prevailed in cases of this sort. But I agree with the rest of the court that this case is not within Heelis v. Blain, and that it is within Murray v. Thorniley and Hayden v. Twerton, and therefore that our judgment should be for the appellant.
Note. — THE STATUTE OF USES IN Wills. “In the opening of the work it was observed, that a power given by a will was a common law authority. But here we must consider whether a devise to uses through the medium of a devisee, as a devise to A. and his heirs, to the use of B. and his heirs, will not take effect under the Statute of Uses. Upon this point a difference of opinion has been expressed : Butl. n. to Co. Lit. 271 b, III. § 5; Powell on Devises, 272; and see 1 Sand. on Uses, 195 ; and Fonbl. n. (e) to 2 Treat. Eq. p. 24, 2d edit. The Statute of Uses would equally oper. ate on the 1 Vict. c. 26, and, indeed, the subject is exhausted by the learning which has been displayed upon it. Of course an immediate devise to A. for life, remainder to B. in fee, would be good, although no seisin was raised to serve those estates ; or, in other words, lands may be devised without the aid of the Statute of Uses, and it is not material that the limitations are termed uses; and powers may be created in like manner. They will be common-law authorities, and the appointee will be in, not hy the Statute of Uses, but by the devise. Dike v. Ricks, Cro. Car. 335. On the other hand, it seems equally clear that where a seisin is raised by will to feed uses created by it, such uses will be executed into estates by the Statute of Uses.
“In support of the contrary opinion, it is insisted that the Statute of Uses cannot refer to the Statute of Wills, which was not then in contemplation. It is said to be difficult to conceive how uses created under the testamentary power given by the Statute of Wills can be within the Statute of Uses ; and that it may be argued that a Statute can never be considered as relating to anything which did not exist at the time of its passing. But this is well answered by Coke, who in Vernon's Case, Rep. 1, addressing himself to the precise objection, said “It is frequent in our books, that an Act made of late time should be taken within the equity of an Act made long time before,' of which he gives many instances. And see Williams v. Drewe, Willes, 392 ; Lane v. Cotton, 1 Coin. 100; In Re Perrin, 2 Dru. & War. 147. In the principal case, that part of the Statute of Uses which relates to jointures, was holden to be within the equity of the Statute of Wills. It appears to have been thought in Andrews's Case, in 18 Eliz. Mo. 107, that the Statute of C'ses would operate on uses created by will; and in Popham and Bampfield, 34 Car. II. 1 Vern. 79, and Burchet and Durdant, 2 Will. & M. 2 Ventr. 311, the same point was admitted both at the bar and by the court. In the case of Hore and Dix, 12 Car. II. 1 Sid. 26, 4th resol., it was resolved, that an use could not be raised without a deed. And as to the case of a devise of land to uses, by a will in writing, which is not a deed, it was said, that that went upon another reason, scil. rather upon the Statute of 32 H. VIII. of Wills, than upon the Statute of 27 H. VIII. of Uses. This case has been treated as an authority, that the use is exe. cuted by the Statute of Wills, and not by the Statute of Uses; but on the contrary, it appears to admit that the Statutes may have a concurrent operation. It was in like manner admitted in Broughton and Langley, 2 Ann. 2 Ld. Raym. 873 ; 2 Salk. 679, that a devise of lands may be by express words to the use of another than the devisee, and that such devise will be executed by the Statute of Uses. In later times the same point has been repeatedly ruled, or treated as clear, Hopkins v. Hopkins, 1 Atk. 589 ; Bagshaw v. Spencer, 1 Ves. 143 ; Wright v. Pearson, Fearn. Cont. Rem. 128 ; Perry v. Phelips, 1 Ves. jun. 255 ; Thompson v. Lawley, 2 Bos. & Pull. 311 ; Doe v. Finch, 4 Barn. & Adol. 283 ; and there is not a single case in which the point has been doubted. It must be considered therefore as settled, upon principle as well as authority, that the Statute of Uses may operate on uses created by will : and that where a seisiu is created to serve the uses, the Statute will in most cases transfer the possession to them. It is not denied that a devise unto and to the use of one, will vest the legal estate in him, although ulterior uses are declared in favor of others; but this, perhaps, it may be said, is not by the operation of the Statute of Uses, but depends on an irresistible inference of the testator's intention, in analogy to the resolutions on limitations to uses in deeds. Robinson v. Comuns, For. 164; Brydges v. Brydges, 3 Ves. 120 ; and Doe v. Passingham, 6 Barn. & Cress. 305 ; 9 Dowl. & R. 416." Sugd. Pow. (8th ed.) 146–148.
See Baker v. White, L. R. 20 Eq. 166, 171.
Note. — Trusts form the subject of a separate course. Only two cases are here given, — to point out differences between Uses and Trusts.
NEVIL V. SAUNDERS.
CHANCERY. BEFORE LORD JEFFREYS, C. 1686.
(Reported 1 Vern. 415.] LANDS were given by will to trustees and their heirs, in trust for Anne the defendant's wife and her heirs, and that the trustees should .from time to time pay and dispose of the rents and profits to the said Anne, or to such person or persons as she by any writing under her hand, as well during coverture as being sole, should order or appoint the same, without the intermeddling of her husband, whom he willed should have no benefit or disposal thereof; and as to the inheritance of the premises, in trust for such person or persons, and for such estate and estates, as the said Anne by any writing purporting her will, or other writing under her hand, should appoint; and for want of such appointment, in trust for her and her heirs.
The question was, whether this was an use executed by the Statute, or a bare trust for the wife: and the court held it to be a trust only, and not an use executed by the Statute.
LLOYD v. SPILLET.
(Reported 2 Alk. 148.] John Stamp, being seised of a considerable real estate, and pos. sessed of a large personal estate, made his will dated the 28th of March, 1721, and afterwards a codicil of the 10th of October, 1721, and appointed John House and John Spillet bis trustees, to see what he had done in his life-time be continued as he ordered, and then gave his cousins Anne and Mary Jobson £15 a year a-piece during their lives, and directed his trustees to improve all his estate to the best advantage, and that the yearly profits thereof should be given to and for the yearly maintenance of such ministers, as were called by the name of Presbyterian and Independent ministers, that do not receive above £40 a year for their preaching; the testator afterwards added Richard Froome to the other two trustees, and on the 7th of December, 1721, there was an indenture of release duly executed between John Stamp, of the one part, and House, Froome, and Spillet of the other part, witnessing that Stamp, as well for and in consideration of the natural love and affection which he bore unto his cousins House, Froome, and his friend Spillet, and also in consideration of ten shillings paid by them, granted to them several messuages and farms therein mentioned, to hold to them, their heirs and assigns, to the use of them, their heirs and assigns for ever; provided always, &c. that if Stamp should at any time during his life tender or pay to House, &c. 108. on purpose to make void the said deed and the estates thereby conveyed, then the deeds and the estates thereby limited should be void. John Stamp did also execute a deed-poll of his personal estate to House, Froome, and Spillet, whereby John Stamp, in consideration of ten shillings, and other good causes, bargained and sold to House, &c. all his goods and chattels, to hold to them, their executors, &c. and put them in pos session of all the premises by the delivery of five shillings to them; and it was agreed between the parties, that Stamp should have the rents and profits of the premises during his life for the maintenance of himself and family, and a power was reserved to Stamp to make void this deed by any deed or writing, and to dispose of the premises as he should think fit; and he had power also to revoke the lease and release.
The bill is brought by the plaintiffs as heirs at law to John Stamp, and the end of it is, that the defendants may convey John Stamp's real estate to the plaintiffs and their heirs, and account for the rents and their share of the personal estate, and deliver up the deeds of bargain and sale, and lease and release, and the title-deeds.
The defendants insist on their right to the real and personal estate by virtue of the will and conveyances of John Stamp, and in regard it is by his will declared that if his heirs should commence any suit relating to his will, that then it should be void : they submit to the court, that if the plaintiffs had any title to their annuities of fifteen pounds each, they have forfeited the same by bringing this suit.
First, With regard to the personal estate: I am of opinion there are no grounds for the present plaintiffs to be relieved, according to the prayer of their bill.
For here is an assignment, or bill of sale of all his goods and chattels, and all other his substance whatsoever, movable or immovable, quick or dead, to his trustees during his life, for the maintenance of himself and family, with another proviso to revoke the uses of this deed by any other deed or writing, or even by cancelling without any form or ceremony whatsoever.
A man makes a will antecedent to a deed, in which he has given away all his personal estate to charitable uses.
Now, whether a man after a will made reserves a trust in what was his personal property before, or acquired after, the will is ambulatory, till his death, and therefore, as to the next of kin, there is no pretence that the personal estate is devisable under the Statute of Distributions.
Secondly, As to the legal estate, whether it will pass by the lease and release without a consideration.
Now, there are no grounds whatsoever to say that the legal estate did not pass by the lease and release. For the considerations in it are such as will operate by way of transmutation of possession.
In the first place, here is a consideration expressed of natural affection to two persons, who are not disputed to be very nearly related to the grantor, and here is likewise the consideration of ten shillings; but there is no manner of doubt the estate would have passed even without the last pecuniary consideration, under the Statute of Uses, for natural love and affection is very sufficient to create a use, and will amount to a covenant to stand seised, though no other consideration appear.
But then it has been insisted, here is not a sufficient consideration to. pass the beneficial interest in this estate.
The consideration of ten shillings, it is said, is only a form in the conveyance, and not sufficient of itself to pass the estate : neither will the consideration of natural love and affection alone pass it.
But I do not think these observations material in the present case.
Consider how it stood at common law before the Statute of Uses ; there was no necessity then that there should be any consideration expressed to pass the estate.
As, for instance, in the case of feoffments, there was no consideration at all mentioned in them, and yet the estate passed by them from the operation of law.
In process of time, for the sake of avoiding forfeitures to the Crown, when the contests arose between the two Houses of York and Lancaster, and likewise to avoid wardships, both of them with a fraudulent intention to cheat the Crown, and the lord, of what the law gave them, uses were introduced, and were exactly the same with what trusts are and I wonder how they ever came to be distinguished.
The doctrine of a resulting use first introduced the notion that there must be a consideration expressed in the deed of feoffment, or otherwise nothing could pass, but it would result to the feoffor.
And so it is insisted on here, that though the legal estate passes by the Statute of Uses, yet the beneficial interest will not pass, as there is not what the court calls a valuable consideration, and consequently there is a resulting trust for the heir.
I am now bound down by the Statute of Frauds and Perjuries to construe nothing a resulting trust but what are there called trusts by operation of law; and what are those? Why, first, When an estate is purchased in the name of one person, but the money or consideration is given by another; or secondly, Where a trust is declared only as to part, and nothing said as to the rest, what remains undisposed of results to the heir at law, and they cannot be said to be trustees for the residue.