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I do not know in any other instance besides these two where this court have declared resulting trusts by operation of law, unless in cases of fraud and where transactions have been carried on mala fide.
But in the present case there is no fraud at all in the grantees, but a scheme in the plaintiff's ancestor to secure the charity at all events, supposing he should revoke his will.
It has been said, that it was not the intention to give this estate to the defendant, and consequently the heir at law is entitled : for the heir at law does not want an express intention; and it is certainly so in the case of a will, but it is otherwise with regard to a deed.
For there, since the Statute of Frauds and Perjuries, the lines are exactly drawn with regard to resulting trusts, and the heir at law must show an express trust for him in order to entitle himself.
A man that convey's a trust to another, and barely for himself, or for the use of his heir at law, does not generally insert a power of revocation, as has been done in the present case.
Upon the whole, I am of opinion that the legal estate did well pass, and the beneficial interest likewise ; nor do I believe there was any intention that there should be a resulting trust for the heir at law, but the whole design of the plaintiff's ancestor was to secure the charity at all events.
LORD HARDWICKE therefore said, he saw no cause to vary the decree of the 8th of November, 1734, and ordered the same should be affirmed ; but declared that the plaintiffs, the heirs at law of John Stamp, were entitled to the two annuities of fifteen pounds each, devised to them by the testator for their lives, and directed the arrears and growing payments to be paid to the plaintiffs.
[NOTE. — “There needed no consideration to give effect to a conveyance at the common law ; nor when, before the Statute of Uses, land was actually conveyed to uses, did equity require, as the condition of granting its peculiar process, any inducement beyond the obligation imposed on the conscience of the trustee. But if the land was not actually conveyed, then a bargain and sale for money or money's worth, or a covenant in consideration of marriage, or of blood, to stand seised of the land to uses, was necessary to raise the use ; though a pre-contracted marriage, or a remote degree of consanguinity, as that of a cousin, was held sufficient. After the Statute, uses arose upon actual conveyances, without any consideration ; upon bargains and sales, for considerations merely nominal ; upon covenants to stand seised, for the same considerations as before. With respect to fiduciary interests, however, the old rules now underwent some important modifications. If the land was actually conveyed - it mattered not whether by feoffient, or lease and release, at the common law, or by bar. gain and sale, under the Statute - upon express trusts, then such trusts, though declared in favor of a stranger, without a shadow of consideration, were enforced ; but if the intention was suffered to rest in contract, then a substantial consideration, as money or money's worth, or the value of a prospective marriage, was requisite to evoke the extraordinary aid of equity, -- evoked in order, not merely to execute, but to establish the trusts. Between the strongest natural affection and mere friendship, between moral duty towards a wife or child and bounty to a stranger, equity no longer made any distinction, but regarded as volunteers all whose claims had not the support of a really valuable consideration ; and for a volunteer, equity would not do more than administer a trust regularly constituted." 1 Hayes, Conv. (5th ed.), 102.)
NATURE AND INCIDENTS OF OWNERSHIP IN REAL
GOLD AND SILVER MINES.
CASE OF MINES.
(Reported Plowd. 310.31 First, all the Justices and Barons agreed, that by the law all mines of gold and silver within the realm, whether they be in the lands of the queen, or of subjects, belong to the queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore.
Also HARPER, SOUTHCOTE, and Weston, Justices, agreed, that if gold or silver be in ores or mines of copper, tin, lead, or other base metal in the soil of subjects, as well the gold and silver as the base metal entirely belongs of right to the subject, who is the proprietor of the soil, if the gold or silver does not exceed the value of the base metal; but if the value of the gold or silver exceeds the value of the copper or other base metal, then it was their opinion that the Crown should have as well the base metal as the gold or silver; and in such case it shall be called a mine royal, and otherwise not; but if the base metal exceeds the value of the gold or silver, then it draws the property of the whole to the proprietor of the land. But they three agreed, that forasmuch as the information sets forth that the ore and mine of copper contained in it gold or silver, and the defendant has not denied it, but has fully confessed it, thereby it shall be taken that the gold or silver
1 Only a part of the judgment on p. 336 is given.
were of the greater value, for the best shall be intended for the queen; and therefore they assented, with all the other Justices and Barons, that judgment should be given against the earl, and for the queen. But all the other Justices and Barons of the Exchequer unanimously agreed, that if the gold or silver in the base metal in the land of a subject be of less value than the base metal is, as well the base metal as the gold or silver in it belong by prerogative to the Crown, with liberty to dig for it, and to put it upon the land of the subject, and to carry it away from thence; and in such case it shall be called a mine royal, for the records don't make any distinction herein, but they are general, and prove that all ores or mines of copper, or other base metal, containing or bearing gold or silver, belong to the king. And where Weston said, that there is a text in the civil law to this effect, viz. that by the negligence or poverty of the proprietor of the soil possunt fodi omnia metalla in alieno solo, invito domino, quia utile est reipublicae, et aliter non ; to this SAUNDERS, Chief Baron, said, that the same law says, quod optima legum interpres est consuetudo, and here there is consuetudo, for the precedents and the accounts prove that from time to time it has been a custom and usage, that the kings of this realm have had the profit of such mines of base metal containing or bearing gold or silver, without any distinction with regard to the value of the gold or silver, be the same greater or less than the base metal. Wherefore le and all the others (except the three above-mentioned) took it that the whole ore and mine belonged to the queen, although the base metal be of the greater value. And here it is confessed by the defendant, that the ore and mine of copper contains in it gold or silver, so that it agrees with the precedents. And therefore as well the other three as all the rest unanimously agreed, that judgment should be given for the queen upon this plea, although they differed in the matter itself, and in the reasons of the judgment, as it is shown before.
Also they all agreed, that if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown,
SUTTON V. MOODY.
(Reported 1 Ld. Raym. 250.) Trespass quare clausum suum fregit et centum cuniculos suos adtunc et ibidem inventos venatus fuit occidit cepit et asportavit. Upon not guilty pleaded, verdict for the plaintiff and entire damages. Gould, Serjeant, moved, in arrest of judgment, that conies are feræ natura, and therefore there is no property in them in any; therefore since the plaintiff has laid property in them by the word (suo8] it is ill, and no damages ought to have been given for them. But if the action had been for having hunted in warenna sua, and killed cuniculos suos there found, it had been good, for then he would have had a privileged property in them. The same law for fish taken in separali piscaria. F. N. B. 87; Greenhill v. Child, Cro. Car. 399 ; March, 48; W. Jones, 410. But generally there is no property in things which are ferie natura, and therefore trover does not lie for a hawk, without alleging that he was reclaimed ; and in such an action it was adjudged against the plaintiff, though it was alleged in the declaration, that he was possessed of the hawk as of his proper goods, Dier, 306 b, pl. 66. Sed non allocatur. For per Holt, Chief Justice, a warren is a privilege, to use his land to such a purpose ; and a man may have warren in his own land, and he may alien the land, and retain the privilege of warren. But this gives no greater property in the conies to the warrener, for the property arises to the party from the possession; and therefore if a man keeps conies in his close (as he may), he has a possessory property in them so long as they abide there; but if they run into the land of his neighbor, he may kill them, for then he has the possessory property. If A. starts a hare in the ground of B. and hunts it, and kills it there, the property continues all the while in B. But if A. starts a hare in the ground of B. and hunts it into the ground of C. and kills it there, the property is in A., the hunter ; but A. is liable to an action of trespass for hunting in the grounds as well of B. as of C.
1 So held in Churchvard v. Studdy, 14 East, 249 (1811).
“I think Lord Holt must have been of opinion that as long as the game continued upon the land there was a species of property, or rather, perhaps, a right to take it, existing in the owner of the land, which was sufficient to make it his the instant, by being killed or taken, it became the subject of property. But I cannot so easily discover the principle upon which he proceeds when he said that “If A. starts a hare in the ground of B. and hunts it into the ground of C. and kills it there, the property is in A., the hunter ; but A. is liable to an action of trespass for hunting in the grounds as well of B. as of C.'.
“I have some difficulty in understanding why the wrongdoer is to acquire a property in the game under the circumstances here supposed. If the animal had left the land of B. and passed into the land of C. of its own will, and had been, immediately it crossed the boundary, killed by C., it would unquestionably have been his property. Why then should not the act of a trespasser, to which C. was no party, have the same effect as to his right to the animal as if it had voluntarily quitted the neighboring land ? And why not only should B. lose his right to the game, and C. acquire none, but the property, by this accident of the place where it happened to be killed, be transferred to the trespasser ? It would appear to me to be more in accordance with principle to hold that if the trespasser deprived the owner of the land where the game was started of his right to claim the property by unlawfully killing it on the land of another to which he had driven it, he converted it into a subject of property for that other owner, and not for himself." Per LORD CHELMSFORD, in Blades v. Higgs, 11 H. L. C. 621, 639.