¹ 27 Hen. 8, c. 10.

² 1 Atk. at 591.

³ Sugden, in Gilbert, on Uses, 3rd ed., pp. 348–350n., has some pertinent remarks.Google Scholar

^3a Here B takes at common law and not under the statute according to the accepted authorities. See Cheshire, , Modern Real Property, 7th ed., p. 56.Google Scholar

⁴ Callard v. Callard (1597) Moore 687, Cro.Eliz. 344, where it seems to have been held by the Exchequer Chamber that the intent to raise a use in this way must be declared by deed.

⁵ It was unsuited for family needs. Particularly because the consideration was necessarily of blood or marriage, no use could be raised in favour of a stranger, nor indeed could a power be executed in his favour.

⁶ Lutwich v. Mitton (1621) Cro.Jac.604. The three heads of the common law courts, sitting in the Court of Wards, would not allow this point to be argued, so axiomatic did they consider it.

⁷ Concise History, 5th ed., 599.Google Scholar

⁸ Dyer 155a.

⁹ Or even more generally there were doubts based on the duty towards the reversioner raised by tenure: Brooke, , Feoffment al Uses 40 (1532), 47 (1538).Google Scholar Earlier law required the feoffee to have a fee simple: Plucknett, Concise History, 581.

¹⁰ Powers of leasing could not, therefore, be effectively conferred through a bargain and sale.

¹¹ Suppose it was expressed in a bargain and sale that the purchase money was C's and paid by B only as his agent, and the habendum was then to B in fee to the use of C in fee. Where is the repugnancy here and why should not this use on a use be executed? But the courts do not appear to have considered such a case.

¹² Anon. Cary 14, S.C. Crompton, Courts, 54a. In Holloway v. Pollard (1605) Moore 761, Lord Ellesmere in Chancery was of opinion that “le bargainor que vient eins per l'use del fine ne poit estoyer seisie al ascun auter use car donques la serroit use sur use.” For a reaffirmation of the common law view, see Girland v. Sharp (1595) Cro.Eliz. 382.

¹³ Thus Lord Nottingham reporting one of his cases in 1681 (Case Book, case 1098) says that he “was not willing to speak so plainly of this case as it deserved nor to brand a gentleman of quality (the defendant) with the terms of a fraudulent circumventor of his mother (the plaintiff). There is room enough for relief in this court by calling that which looks like a fraud by the more civil name of a trust, as we did in Mildmay & Duckett's Case, though when that case came before the Lords they called a spade a spade.” In Mildmay's Case (case 822) he had “thought it the mildest part of the case to declare that all the deeds obtained by the defendant were in trust for the plaintiff. For else I should be obliged to set them all aside as being gained by a manifest fraud and circumvention.”

¹⁴ Where freehold land was given to A and his heirs to the use of B for 21 years, the use was executed and the case was not like that of an assignment of a term to A for the use of B for 21 years.

¹⁵ Particularly over doctrines of privity.

¹⁶ Concise History, 5th ed., 600et seq.Google Scholar

¹⁷ A reliable precedent book like West's Symboleography gives, in Holdsworth's opinion (H.E.L., V, 307) a precedent of a trust imposed on a bargain and sale in a form which appears at least doubtful. 1615 & 1647 eds., s. 284.

¹⁸ 2 Mod. at 251.

¹⁹ Cary 16.

²⁰ (1600) 4 Inst. 86.

²¹ Tothill, 188, gives the decision in a single brief sentence. The decretal orders give a fuller story. Reg.Lib. 1634/5, B f. 47: on October 14 the case was put to the court. John Price, former husband of the plaintiff, Margery Sambach, intending to convey his lands to the use of himself in tail and in default of issue to the plaintiff Margery in tail with other remainders over, “a feoffment was to that purpose by him made to the defendant and one Richard Willis, since deceased, by the words in the habendum whereof the estate is limited to the said defendant and the said Willis and their heirs to the use of them, their heirs and assigns, for ever to the several uses hereafter mentioned, viz., to the use of the said John Price and the heirs of his body and for default of such issue to the use of the plaintiff Margery and the heirs of her body with other remainders over. By which mistake in regard that in law one use cannot be raised out of another use the estate in law now resteth in the defendant. And therefore the plaintiffs have exhibited their bill to compel the defendant to convey the said lands to the use of the plaintiff Margery in tail with the remainders over…” The defendant admitted he did not claim to his own use. Reg.Lib. 1634/5, B f. 93: on November 12 the Queen's Solicitor appeared to argue against an order nisi that the defendant should convey to the use of Margery in tail with remainders over. He conceded the defendant did not claim except “to and upon such trusts as in the deed of feoffment under the name of uses are expressed” but he urged that the proposed conveyance would prejudice an infant remainderman because Margery would be enabled to discontinue and grant an entail to her second husband. If the uses had been properly limited she would have been prevented by 11 Hen. 7, c. 20 from discontinuing the entail and the intention of the donor to benefit his kindred by remainders was clear. The case was postponed for a full hearing which came on next May: Reg.Lib. 1634/5, B f. 585. The plaintiffs insisted that it was intended that Margery should have an estate in tail and alleged “that the limitation in the said deed of trust to the use of the said trustees and their heirs for ever was inserted only through the ignorance of the scrivener that drew the conveyance…” The defendant contended that the words were there “by the providence of John Price to bar the plaintiff Margery from doing any act to prejudice the estate of those who are in the remainder…” After much argument which is minuted in the decretal order, it was ordered that Margery should enjoy the property during her life and on death it should devolve on her issue, if any, (which was unlikely, as she had married twice in the last twenty years, and had none), Sambach to be entitled as tenant by the curtesy if issue were born and predeceased her, and that the defendant should execute such a conveyance approved by Hutton J., care being taken that Margery should have no power to cut off the entail and thus prejudice the remainderman.

²² Bell, Court of Wards and Liveries, Appendix II, Table A.

²³ Concise History, 5th ed., 602.Google Scholar

²⁴ Ash v. Gallen (1668) 1 Chan.Cas. 114, has interesting arguments between counsel, but the parties inconsiderately compromised.

²⁵ Lectures in Legal History, 247.

²⁶ A copy of this work has recently come to light and been acquired by the Law Library of Congress. From internal evidence it seems to have been written mostly in 1674–1675.

²⁷ He is speaking generally without adverting to such exceptions as leaseholds.

²⁸ This is the Act of 1483 referred to in the first section. Though it gave to certain beneficiaries a power to convey the legal estate it left untouched the power of the feoffees themselves to convey, and thus purchasers were still in great danger of unknown dispositions of the legal estate, let alone possible collusion between cestui que use and his feoffees. The Act was not repealed till 1863 when it had long been of no effect.

²⁹ Works, ed. Spedding, VII, 421. See Chudleigh's Case, 1 Co.Rep. 113b, 123. In this case the language of some of the judges shows the close connection between the two Acts; per C.B. and Walmesley J. at 132, and per Gawdy J. at 135.

³⁰ I take this to mean a limitation to A and B to the use of A, B, C and D and their heirs in trust for the settlor. In a case in 1678 (case 780) Lord Nottingham reports a settlement, seemingly before 1654, by the late Lord Chandos who had suffered a recovery “to the use of himself and Dudley Rowse and their heirs in trust for the Lord Chandos and his heirs.”

³¹ A good example of the narrow line between active and passive trusts. Lord Nottingham here cites Brooke, Feoffment al Uses, 52, on which this last example is based.

³² On the question how far the equitable owner of an estate less fee simple could alienate so as to bind his feoffees, it may be pertinent to state in simplified form the principal rules. The equitable owner in tail if he conveyed by lease and release or feoffment or recovery could only bind the feoffees during his life by virtue of the Act of 1483. Lord Nottingham in 1681 (case 1117) said that a recovery suffered by such a beneficiary did not bind his feoffees longer than his life for the reason they were not seised solely to his use. A fine levied by such a beneficiary did bar his feoffees from entering after his death, but this was not because of the Act of 1483, but because their estate was dispossessed by virtue of 4 & 5 Hen. 7, c. 24, on Fines. As for the equitable tenant for life, his alienation of the fee passed only an interest determinable on his death, because when he died the feoffees claimed to the use of the remaindermen and the alienation could not bar their entry, which was a common law right not affected by the Act.

³³ This sentence indicates that Lord Nottingham would not have allowed a gift unto and to the use of A in fee to the use of B in fee the effect later attributed to it. His opinion is clearly logical. However, it was eventually laid down in Doe v. Passingham (1827) 6 B. & C. 305, that in a gift to A and his heirs to the use of A and his heirs in trust for B and his heirs, the use to A is executed in him at common law and the Statute does not move against B's interest. Earlier Sir Edward Sugden in his work on Powers, 4th ed. at p. 129Google Scholar, had argued learnedly that “if the estate vests in A by the common law…it is clear that the statute would execute the use limited to B; for, independently of the statute. A cannot take a legal estate under a conveyance upon which the statute would not operate if uses were declared of it.” An instructive case on this question is Tipping v. Cosins (1695) Comberbatch 312, Carth. 272, where the estate was limited in a fine to the use of trustees and their heirs during the life of the settlor on trust to allow him to take the profits. Serjeant Wright argued that the settlor was vested with the legal estate by the Statute, because the trustees were in at common law, “as where a man makes a feoffment to certain trustees and their heirs to the use of them and their heirs in trust for J.S., this trust is executed,” but the court decided that the trustees took under the Statute, “because the limitation of the use is different from the estate of the land….”

³⁴ Another Act of Richard 3, c. 5, provides an interesting statutory precedent. This Act vested seisin in any cestui que use in respect of whose land the King, when Duke of Gloucester, had been solely seised to uses. At common law the King could not be seised to uses, because, says Lord Nottingham in his Prolegomena. “he is a body politic and is not compellable by subpoena.”

³⁵ Gilbert, on Uses, 3rd ed., p. 69.Google Scholar

³⁶ There are many difficult cases of interpretation where active and passive duties are run together. e.g., a trust to pay rent to A or to permit him to take the rents. See Maitland, Equity, 38–39.

³⁷ See generally Sanders, on Uses, 5th ed., pp. 2–4Google Scholar, for the above paragraph.

³⁸ Case 487. Reg.Lib. 1675/6, A f. 881, gives the complicated facts of this bill for a partition. The plaintiff claimed under a deed enrolled in 1651 with fine and recovery from one Thomas Gwillim. The defendant denied the plaintiff's title because Thomas Gwillim “did by indenture dated the 18th day of May in the 17th year of King Charles the first convey [the land] to Thomas Caple, Esq.,…Edward Andrews and their heirs…to hold for the use or in trust for the use of himself Thomas Gwillim and Mabel his wife for their lives and after their decease to Thomas Gwillim the younger, his son, and heirs male of his body, and for want thereof to the right heirs of Thomas Gwillim the elder…” The defendant said he was heir male and that Thomas the elder, being only tenant for life, had no power to convey to the plaintiff. After delays over trying the defendant's title by Ejectment the court decided in view of the defendant's conduct to take the issue as found against him, and just under a year from the first hearing a commission was awarded to make partition. Reg.Lib. 1676/7, A ff. 431, 552.

³⁹ Eq.Cas.Ab. 383.

⁴⁰ In Cotton's Case (1612) Godbolt 191 the Courts of Wards decreed the infant heir of an assignee of a lease to be in ward. This revolutionary attempt to attach incidents of freehold tenure to a leasehold was not repeated, though it was the decision of Coke C.J. and Tanfield C.B.

⁴¹ 12 Car. 2, c. 24. The Act in fact regularised a situation that had existed from February 24, 1645.

⁴² Case 714.

⁴³ 32 Hen. 8, c. 1.

⁴⁴ It would have been more accurate to say that all freehold tenures (except frankalmoin) were turned into socage. The Act in section 1 does in terms take away and discharge tenures by knight service, etc., and then enacts that all tenures are to be turned into free and common socage. Challis, Real Property, 23, has some extreme strictures on the drafting.

⁴⁵ 29 Car. 2, c. 3, ss. 7, 9.

⁴⁶ Anyone who wishes to see the appalling difficulties that arose may consult Delamere's Case (1567) Plowden 346. These difficulties explain some differences of wording between the two statutes. The draftsmen of the first section of the Statute of Uses, for example, were careful to speak of seisin “to the use, confidence or trust of any other person or persons,” and not to speak of seisin “to the use only of other persons,” for as Bacon remarks is his Reading on the Statute of Uses, “they had experience what doubt the word ‘only’ bred upon the statute of 1 Ric. III.” Bacon also thought the second section of the Statute of Uses was strictly superfluous and introduced from a desire to avoid the word.