session by turning the interest of the cestui que use into a legal estate, and annihilating the intermediate estate of the feoffee; so that if a feoffment was made to A. and his heirs, to the use of B. and his heirs, B., the cestui que use, became seised of the legal estate, by force of the statute. The legal estate as soon as it passed to A., was immediately drawn out of him and transferred to B., and the use, and the land, became convertible terms.

The equitable doctrine of uses was, by the statute, transferred to the courts of law, and became an additional branch of the law of real property. Uses had new and peculiar qualities and capacities. They had none of the lineaments of the feudal system, which had been deeply impressed upon estates at common law. Their influence was sufficient to abate the rigour, and, in many respects, to destroy the simplicity of the ancient doctrine. When the use was changed from an equitable to a legal interest, the same qualities which were proper to it in its fiduciary state, followed it when it became a legal estate. The estate in the use, when it became an interest in the land, under the statute, became liable to all those rules to which common law estates were liable; but the qualities which had attended uses in equity, were not separated from them when they changed their nature, and became an estate in the land itself. If they were contingent in their fiduciary state, they became contingent interests in

the land. They were still liable to be over- *295 reached by the exercise of powers, and to be shifted, and to cease, by clauses of cesser, inserted in the deeds of settlement. The statute transferred the use. with its accompanying conditions and limitations, into the land. Contingent, shifting, and springing uses,

* Brent's case, 2 Leon, 16. Manwood, J., 2 And. 75. Preston on Estates, vol. i. 155, 156. 158.

Con

presented a method of creating a future interest in land, and executory devises owed their origin to the doctrine of shifting or springing uses. But uses differ from executory devises in this respect; that there must be a person seised to the uses when the contingency happens, or they cannot be executed by the statute. If the estate of the feoffee to such uses be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever; whereas, by an executory devise, the freehold is transferred to the future devisee." tingent uses are so far similar to contingent remainders, that they also require a preceding estate to support them, and take effect, if at all, when the preceding estate determines. The statute of uses meant to exclude all possibility of future uses," but the necessity of the allowance of free modifications of property introduced the doctrine, that the use need not be executed the instant the conveyance is made, and that the operation of the statute might be suspended until the use should arise, provided the suspension was confined within reasonable limits as to time. In the Duke of Norfolk's case, Lord Nottingham was of opinion (as we have already seen,) that there was no inconvenience, nor any of the mischiefs of a perpetuity, in permitting future uses, under the various names of springing, shifting, contingent, or secondary uses to be limited *296 to the same period to which the law *permits the vesting of an executory devise to be postponed. Uses and contingent devises became parallel doctrines, and what, in the one case, was a future use, was, in the other, an executory devise.

* 2 Blacks. Com. 334. Fearne on Executory Devises, by Powell, 86, note. Bacon on Uses, Law Tracts, 335. 340.

Dyer, J., in Bawell and Lucas' case, 2 Leon, 221. Holt, Ch. J., in Davis v. Speed, 12 Mod. Rep. 38. 2 Salk. 675, S. C.

The statute having turned uses into legal estates, they were thereafter conveyed as legal estates, in the same manner, and by the same words. The statute intended to destroy uses in their distinct state, but it was not the object of it to interfere with the new modes of conveyance to uses; and the manner of raising uses out of the seisin created by a lawful transfer, stood as it had existed before. If it was really the object of the statute of uses to abolish uses and trusts, and have none other than legal estates, the wants and convenience of mankind have triumphed over that intention, and the beneficial and ostensible ownerships of estates were kept as distinct as ever. The cestui que use takes the legal estate according to such quality, manner, and form as he had in the use. The complex and modified interests annexed to uses were engrafted upon the legal estate; and upon that principle it was held to be competent, in conveyances to uses, to revoke a former limitation of a use, and to substitute others. The classification of uses into shifting or secondary, springing and future, or contingent and resulting uses, seems to be necessary, to distinguish with precision their nice and varying characters; and they all may be included under the general denomination of future uses.

(2.) Shifting or secondary uses take effect in derogation of some other estate, and are either limited by the deed creating them, or authorized to be created by some person named in it. Thus, if an estate be limited to A. and his heirs, with a proviso, that if B. pay to A. 100 dollars, by a given time, the use of A. shall cease, and the estate go to B. in fee, the estate is vested in A., ject to a shifting or secondary use in fee in B. So, if the proviso be, *that C. may revoke the *297 use to A., and limit it to B., then A. is seised in

sub

Willes' Rep. 180.

fee, with a power in C. of revocation and limitation of a new use. These shifting uses are common in all settlements; and in marriage settlements the first use is always to the owner in fee till the marriage, and then to other uses. The fee remains with the owner until the marriage, and then it shifts as uses arise. These shifting uses, whether created by the original deed, or by the exercise of a power, must be confined within proper limits, so as not to lead to a perpetuity; which is neatly defined by Sir Edward Sugden," to be such a limitation of property as renders it unalienable beyond the period allowed by law. If, therefore, the object of the power be to create a perpetuity, it is void. And yet, in England, it is well settled, that a shifting use may be created after an estate tail; and the reason given is, that such a limitation, to take effect at any remote period, has no tendency to a perpetuity, as the tenant in tail may, when he pleases, by a recovery, defeat the shifting use; for the recovery bars and destroys every species of interest ulterior to the tenant's estate. It is on this principle that a power of sale or exchange, in cases of strict settlement, is valid, though not confined to the period allowed for suspending alienation, provided the estate be regularly limited in tail. Shifting and secondary uses may be created by the execution of a power; as if an estate be limited to A. in fee, with a power to B. to revoke and limit new uses, and B. exercises the power, the uses created by him will be shifting or secondary in reference to A.'s estate; but they must receive the same construction as if they had been created by the original deed.

Bro. Feoff. al. Uses, 339, a. pl. 30. Mutton's case, Dyer, 274, b. Gilbert on Uses, by Sugden, 152–155.

b Gilbert on Uses, by Sugden, 260, note.

• Spencer v. Duke of Marlborough, 5 Bro. P. C. 592.

d Nicholls v. Sheffield, 2 Bro. 218. St. George v. St. George, in the House of Lords, cited in Gilbert on Uses, by Sugden, 157.

(3.) Springing uses are limited to arise on a future event, where no preceding estate is limited, *298 and they do not take effect in derogation of any preceding interest. If a grant be to A. in fee, to the use of B. in fee, after the first day of January next, this is an instance of a springing use, and no use arises until the limited period. The use, in the mean time, results to the grantor, who has a determinable fee. A springing use may be limited to arise within the period allowed by law in the case of an executory devise. A person may covenant to stand seised, or bargain and sell, to the use of another at a future day. By means of powers a use, with its accompanying estate, may spring up at the will of any given person. Land may be conveyed to A. and his heirs, to such uses as B. shall by deed or will appoint, and in default of and until such appointment, to the use of C. and his heirs. Here a vested estate is in C. subject to be divested or destroyed at any time by B. exercising his power of appointment, and B. though not the owner of the property has such a power, but it extends only to the use of the land, and the fee simple is vested in the appointee, under the operation of the statute of uses, which instantly annexes the legal estate to the use. These springing uses may be raised by any form of conveyance; but in conveyances which operate by way of transmutation of possession, as a feoffment, a fine, or deed of lease and release, the estate must be conveyed, and the use be raised out of the seisin created in the grantee by the conveyance. A feoffment to A. in fee, to the use of B. in fee, at the death of C., is good, and the use would result to the feoffor, until the

⚫ Woodliffe v. Drury, Cro. Eliz. 439. Mutton's case, Dyer, 274, b. Roe v. Tranner, 2 Wils. Rep. 75. Holt, Ch. J., 2 Salk. Rep. 675. Rogers v. Eagle Fire Insurance Company of New-York, 9 Wendell, 611. • Williams on the Principles of Real Property, Part II. ch. 3, p. 231.