moign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions,' just as the Druids, among the ancient Britons, had omnium rerum immunitatem.TM And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feudal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise, to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor, to correct it." Tenure by divine ser Wherein it materially differs from what was called— 2. Tenure by Divine Service, in which the tenants were obliged to do some special divine services in certain, as to vice. sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms, especially as for this, if unperformed, the lord might distrain without any complaint to the visitor ;P and in this tenure, it seems, that fealty was due. All such donations are, indeed, now out of use; for, since the statute of quia emptores, 18 Edw. 1, none but the king can give lands to be holden by spiritual tenure. So that I only mention frankalmoign, and tenure by divine service, because the former is excepted by name in the statute of Charles II., and the latter is not affected by it, and therefore they subsist in many instances at this day. It may further be observed that the Real Property Commissioners do not propose to make any alterations either in tenure in frankalmoign, or in tenure by divine service. Which is all that shall be remarked concerning them; herewith concluding our observations on the nature of tenures. 1 Seld. Jan. 1, 42. m Cæsar de Bell. Gall. 1. 6, c. 13. n Litt. s. 136. The old books divide spiritual tenure, into free alms, (which was free from any certainty;) and alms, because the tenants were bound to cer tain divine services. And the tenure in alms, or tenure by divine service, Britton (fo. 164,) calls tenure en au- P Litt. s. 137. a Litt. s. 137. Fealty was inci- * See 3 R. P. Rep. p. 7. of the doc and trusts. CHAPTER THE SEVENTH. OF USES AND TRUSTS. Importance WE here propose to give a brief account of the doctrine trine of uses of uses and trusts, a learning which pervades the whole system of the law of real property, and without some knowledge of which, it is impossible to understand either its theory or its practice. The introduction of uses and trusts, and the passing of the Statute of Uses, almost entirely subverted the feudal system, and the tenures which arose out of it. Nearly all the assurances now employed, operate by virtue of this statute; and we shall see in the ensuing portions of this work what important alterations the doctrine of uses has made, being in fact the foundation of the modern system of conveyancing. This place appears on the whole the most convenient for introducing an outline of this somewhat difficult learning, which, however, the student will more perfectly understand when he is acquainted with the rest of this volume. [327] Uses and trusts: what they are. [ 328 ] Uses and trusts are in their original of a nature very similar, answering more to the fidei-commissum than the usus fructus of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance. But the fidei commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the prætor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence. So that the a There has been here a transposition of Blackstone's text, as to which see Introduction, and post, chap. 22. b Ff. 7, 1, 1. c Inst. 2, tit. 23. d right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary course of law: jus fiduciarium, a right in trust, for which there was a remedy in conscience, and jus precaruim, a right in courtesy, for which the remedy was only by entreaty or request. In our law a use might be ranked under the right of the second kind, being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestui que use, or him to whose use it was granted, and suffer him to take the profits. As, if a conveyance was made to A., and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A., the terre-tenant, had the legal property and possession of the land, but B., the cestui que use, was in conscience and equity to have the profits and disposal of it. This notion was transplanted into England from the civil law, about the close of the reign of Edward III.,f by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses: which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction, which Augustus had vested in his prætor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that, though by law the lands themselves were not devisable, yet, if a testator had [ 329 ] enfeoffed another to his own use, and so was possessed of the use only, such use was devisable by will. But we shall see how this evasion was crushed in its infancy by statute 25 Ric. II. c. 5, with respect to religious houses. the doctrine Yet the idea being once introduced, however frau- Progress of dulently, afterwards continued to be often innocently, of Uses. d Ff. 43, 26. 1. Bacon on Uses, 8vo., 306. * Plowd, 352. f Stat. 50 Edward III. c. 6, 1 Ric. II. c. 9; 1 Rep. 139. See post, ch. 20. h Ibid. and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the res traint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require, and moreover uses were not liable to forfeiture. Till, at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore about the reign of Edward IV., (before whose time Lord Bacon remarks, there are not six cases to be found relating to the doctrine of uses,) the courts of equity began to reduce them to something of a regular system. Originally it was held that the Chancery could give no relief, but against the very person himself intrusted for cestui que use, and not against his heir or alienee. This was altered in the reign of Henry the Sixth, with respect to the heir, and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use." But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence; so might a creditor obtaining execution." And also it was held that neither the King or Queen, [330] on account of their dignity royal, nor any corporation aggregate, on account of its limited capacity, could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. i See post, ch. 20. k On uses, 313. But see 2 Leon. 14, where the origin of uses is referred to a much earlier period. Keilw. 42; Year Book, 22 Edw. 4, 6. m Keilw. 46; Bacon of uses, 312. n Gilb. Us. by Sugd. 15, 16. • Bro. Abr. tit. Feoffm. al. uses, 31; Bacon of uses, 346, 347. P Bro. Abr. tit. Feoffm. al. uses, 40; Bacon, 347. And, if the releasee to uses died without heir, or committed a forfeiture, or married, neither the lord, who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use; because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir. ing to uses statute. On the other hand, the use itself, or interest of cestui Rules relatque use, was learnedly refined upon with many elaborate before the distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quæ ipso usu consumuntur: or whereof the seisin could not be instantly given. 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it for the use of himself:t unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions." But, if either a good or a valuable consideration appeared, equity would immediately raise a use correspondent to such consideration. 3. Uses were" descendible according to the rule of the common law, in the case of inheritances in possession; for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties," or be devised by last will and testament: for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestui que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee; to whom he was accounted by q 1 Rep. 122. r1 Jon. 127. s Cro. Eliz. 401. See post, ch. 22. u 1 And. 37. w Moor. 684. x 2 Roll. Abr. 780. y Bacon of Uses, 312. z Ibid. 308. a Stat. 1 Ric. 3. c. 1. [ 331 ] |