REVERSION. or other services, then, on his death, or the failure of the issue male, the feud was determined and resulted back to the lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty, however, results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion P. The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not è converso: for the maxim of law is, "accessorium non ducit, sed sequitur, suum principale ¶”. These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one, seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion', to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done': for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A. reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to REVERSION. his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A.'s estate'. In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths, it is enacted by the statute 6 Anne, c. 18, that all persons on whose lives any lands or tenements are holden, shall (upon application to the Court of Chancery and order made thereupon) once in every year, if required, be produced to the Court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living. Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate", the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en autre droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for " 3 Lev. 437. 1 And. 23. REVERSION. he hath the inheritance in his own right, the lease in the right of his wife. An estate-tail is an exception to this rule: for a man may have in his own right both an estatetail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee. For estates-tail are protected and preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years, by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it; and now can only do it by certain special modes, by a fine, a recovery, and the like: it would therefore have been strangely improvident, to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee". CHAP. X. OF USES. THERE are few parts of the learning upon the subject of conveyancing more interesting or important to the modern lawyer than the doctrine of Uses and Trusts; all the landed property in the kingdom being directly or indirectly regulated by it. The present chapter will be confined to the first of those heads, and will treat of the origin, nature and general properties of an use, both prior to and since the statute of uses: the particular application of those properties will be more advantageously considered when we come to treat of the nature and operation of such species of assurances as derive their effect from that statute. In considering the subject of uses, I shall inquire into, I. THE NATURE, ORIGIN AND PROGRESS OF USES. III. WHAT SPECIES OF PROPERTY MAY BE CONVEYED IV. THE REQUISITES TO RAISE OR CREATE AN USE. I. OF THE NATURE AND ORIGIN OF USES. USES. AN use at common law was an equitable right which a Nature of an person who conveyed a legal estate to another reserved, use. upon trust and confidence that the person to whom he so conveyed it, would nevertheless suffer him to take the rents and profits of the land, and execute estates according to USES. his direction. The feoffee therefore, or terre-tenant, (that is to say, the person to whom the legal estate was conveyed) had the freehold or sole property in him; and the person who had conveyed the legal estate (that is, the cestui que use) had neither jus in re, nor ad rem, for if he had entered upon the land without the consent of the feoffee, he had been a trespasser; so that nothing remained in him but a bare power over the confidence or trust, for which, if it was broken, his only remedy was by subpœna in Chancery. And this equitable right extended itself only to persons who claimed in privity under the feoffee, that is, who came into the same estate which the feoffee had to the use, and by contract with him; and not to a disseisor, who though he came into the same estate, yet it was not by contract or agreement; and therefore claiming not by or from the feoffee, he consequently did not claim the estate as subject to the uses, but he claimed an estate above and free from the uses; and it would in a manner have defeated his title, if he had been compelled to stand seised to an use, when he did not claim the estate which was charged with the use: for confidence in the person was requisite to an use, as well as privity of estate. And this confidence in the person might be implied as well as expressed. If a feoffee to an use had, for good consideration, enfeoffed one who had no notice of the use, the use was destroyed; for the person enfeoffed not knowing that there were any uses, no trust could be reposed in him to let the cestui que use take the profits; but if he had notice, a trust might well be said to be reposed in him, since he took the land, knowing it to be charged with the uses. So also, if the feoffment had been made without consideration, though the person enfeoffed had no notice • See of Uses, Bac. Uses, 10; Gilb. Law of Uses, 175; 1 Rep. 121; Chudleigh's case, Co. Lit. 121, a. 271, b; n. (1), 290, b, n. (1); Saund. Uses, passim; Cruise Uses, passim; Treat. Eq. book 2 ; Shep. Touch. c. 24. |