the act, he was not seised to the use of any SECT. I. person; but he might afterwards, by his entry, The statute did revest the uses, and then, being seised to the altogether. uses after the act, the use would have been executed in the cestuique use. But this appears to me to be a refined construction upon the words of the statute. Can it be supposed, that the framers of an act, which, as sir Francis Bacon has observed, contains the wisest and fittest ordinances, and the most foreseeing and circumspect savings and provisoes, could not foretell, that there might have been future conveyances to uses? Were they unacquainted with the doctrine of resulting uses? And if they had intended; that lands should not pass by future conveyances, operating by way of use, and that resulting uses should not be executed by the statute, can it be supposed, that they would not have expressed themselves clearly upon those points? To me it appears evident, that, although the statute, by incorporating the use and possession, has virtually extinguished the separate existence of the use, it was not in the contemplation of the legislature to prevent conveyances to uses. This opinion is supported by the statute of inrolments, which makes an additional cere mony necessary to the transfer of the use, and by the twelfth section of the statute of uses, which speaks of uses to be made and exe ⚫ Bac. Uses, 30. G (90.) not abolish uses altogether. SECT. I. cuted in possession, after a particular period; The statute did and it is sanctioned by sir Francis Bacon, who, with respect to the case of the disseisin before the statute, observes, that the regress of the feoffees, after the statute, was. excluded by the two savings; for the first saving respects the right of all persons, except the feoffees; and the second saves the right of the feoffees to their own use; so that between both, the right of the feoffees to the use of another, was shut outd. SECT. II. II. There are several circumstances necesOf the circum- sary to the raising and execution of uses by virtue of the statute. stances neces sary to the ex ecution of uses. Persons seised the use. (1.) As to the person seised to the use. The statute 27 Hen. 8. did not, nor indeed could, alter the nature of the use. It would be a contradiction in terms to say, that an equitable interest, not within the statute 1 Rich. 3d, was a use within the statute 27 Hen. 8.: and it must therefore follow, that a person not capable before the statute 27 Hen. 8. of being scised to a use, cannot be a grantee to uses after it. I have already mentioned the several persons incapacitated to stand seised to c Bac. Uses, 40. e" The statute 27 Hen. " uses, but doth not create "any new uses." Per Coke, in Cowper v. Frankline, 3 Buls. 185. uses f; and it is only necessary to remark in this place, that if an alien be enfeoffed to uses, the statute executes the use until office found: but upon office being found, the use is destroyed by relations. It is the same, if a person, having committed treason, is made grantee to uses, and is afterwards attainted 1. But the statute 27 Henry 8. executes trusts and confidences, as well as uses; and it appears obvious to me, that under these words, the legislature intended, that every beneficial interest, in the shape of a trust, for the performance of which the subpoena would lie against the trustee, and where the old use, or legal estate was not, either by express declaration or necessary construction, vested in him, should be executed by the statute, notwithstanding the trustee, on account of his limited or inferior estate, or by reason of tenure, could not stand seised to a use be fore the statute. By attending to this distinction, I apprehend, that the apparent contradictions in the books, upon the subject under consideration, may be reconciled. I have already stated the grounds, which have occurred to me in support of the con f Ante 62. Bac. 59. King v. Boys, Dyer, 283. b. pl. 31. h Bac. 58, 59. Throg morton's case, cited Moor, 390, 391. SECT. II. Of the circumsary to the exe stances neces cution of uses. SECT. II. stances neces sary to the exe clusion, that neither tenant for life, nor for Of the circum- years, could stand seised to a use before the statute; but it is clear, that the statute execution of uses. cutes the trust declared upon the seisin of a grantee for lifek: and so it would have executed the trust declared upon a term for years, if the statute had used the word, "possessed," as well as "seised;" for the reason assigned by the books, that the trust is not executed in the latter case, is, that the word "possessed," is omitted in the statute', and not because a termor for years could not stand seised to a use. To pursue this distinction: if the statute, in describing the persons standing seised to a use, had used the words, "body politic"," I apprehend, that there would have been no ground to contend, that the trust declared upon the estate of a corporation, would not have been executed by the statute; for the reason, that a corporation could not stand seised to a use was, that the subpoena did not issue against it to compel the performance of the trust"; a reason which has ceased to ope rateo. 1 Vide ante 40, & seq. 'See Jenk. 195. m See Bac. 57. n See Jenk. 195. • 2 Vern. 412. 1 Ves. 467, 468. The same construction, I conceive, will apply to a trust declared upon the estate of a tenant in tail; for although Coke, Bulstrode, and others report P, that in the case of Cooper v. Franklyn, it was determined, that he could not stand seised to a use, either by express declaration, or by implication: yet, admitting this construction in the fullest extent, the question will still be, whether the words of the statuté do not include trusts declared upon, or limited to arise out of, the seisin of a tenant in tail? The statute mentions the word "trust," as well as "use;" and there is no doubt, that the word "seised," will extend to, and comprise, every freehold seisin; and there is nothing in the statute, which saves the right of a tenant in tail. The case of Cooper v. Franklyn is in fact rightly determined. The use in that case could not have been executed by the statute; and therefore it became necessary to ascertain, whether tenant in tail could, before the statute, stand scised to a use. It was thus: John Walter enfeoffed Thomas, his son, to hold to him and the heirs of his body, to the use of him and his heirs for ever. Now, the use being limited to the feoffee himself, the sta SECT. II. Of the circum stances neces sary to the exe cution of uses. (92.) (93.) |