3 employed to vest the beneficial ownership of land in such a way as to escape creditors, the Statutes of Mortmain, and the burdens of feudal tenure. The use The use was enforced solely in chancery and the cestui que use escaped many burdens and restrictions which fell on the holder of the legal title. This condition of affairs was felt, for many reasons, to be undesirable, and statutes were passed from time to time to bring the use within the rules of the common law. These efforts toward a control of the use, which, as was quaintly said, was a nimble and elusive thing, culminated in the statute which will be discussed in the next chapter. Before proceeding to this, a brief reference will be made to some of the salient characteristics of the use. A use was raised on transmutation of possession, in which case it would be express or implied, or without transmutation of possession, in which case it would require a bargain and sale or covenant to stand seised to uses. Express Use Raised on Transmulation of Possession 106. The usual method of conveying land in England was by feoffment with livery of seisin. At the time of the feoffment, the feoffor declared the use, if any, to which the feoffee was to hold the land. This declaration could be by parol, and it seems as if the practice originally was to make the feoffment to the use of the feoffor. No consideration was necessary to the validity of such a use, either on the part of 3 See Statute 50, Edward III, Chap. 6 (1376), avoiding gifts made to use by collusion to escape creditors. *Such as the right of the lord of the fee, to relief, wardship, fine for alienation and escheat for want of heirs. The method of getting rid of feudal burdens was this: land was conveyed to A., B. and C., as joint tenants to the use of X. and his heirs. When A. and B. died, C. would convey to three other persons, and thus the legal title would be prevented from falling into the condition in which the lord of the fee would be entitled to any of his feudal rights. In the meantime, the equitable owners succeeded each other without being subject to any feudal burdens. The use "enabled the equitable owner to extract the honey while the legal tenant guarded the hive:" Edward Jenks in 20 L. Q. Rev., 284 (1904). The use, therefore, was a disadvantage to the feudal lord in so far as his feudal inferior was concerned, and an advantage to him in so far as his feudal superior was concerned. 5 For a very good collection of these statutes and the early cases, see pamphlet by Mr. Ames, Uses and Trusts Before the Statute of 27, Henry VIII. See also article by Mr. Ames, Origin of Uses and Trusts, 21 Harv. Law Rev., 261 (1908). Thus, John would enfeoff William of Blackacre to the use of himself or to the use of Stephen. 7 the cestui que use or the feoffee to uses. If, however, a consideration passed, the feoffor could not declare the use to himself. 8 Implied Use Raised on Transmutation of Possession 107. The use, being the right to the possession, to take the rents and profits, was, in fact, a part of the entire ownership of the land, and seems to have been conceived of by the medieval lawyers as passing with every feoffment, separate and apart from the ownership, but included therein as a part of the whole. Whether because of this technical notion of the use, or because of the almost universal custom of declaring a use on every feoffment, there grew up a number of presumptions which have survived to modern times. It was said that where no use was declared, it would result to the person who paid the consideration. Thus, where William enfeoffed Stephen of Blackacre in fee, and John paid the consideration, the use resulted to John, and Stephen became seised to the use of John in fee. The reason given in the later text books is that the law presumed that a man would not part with value without expecting some recompense, and that it was therefore the intention of the parties that the feoffee should hold to the use of the person paying the money. If, however, no consideration was paid, and no use declared prior to the Statute of Quia Emptores, a use was in the feoffee, as there was a tenure implied in every feoffment which was a sufficient consideration. But after the statute, was declared and no consideration paid, the use resulted to the feoffor. So also where the feoffor declared a partial use to himself, the fee was in the feoffee, because there was no room for any presumption as to the intention of the parties since the intention was expressed. And since every grant is to be taken most strongly against the grantor, it is presumed that if the feoffor wished to have a larger use in himself, he would have said so. Where the feoffor declared a partial use to a third person, the remainder resulted to himself, because after the termination of the partial use, the presumption applied. It seems, however, that there was no 71 Anderson, 37, placitum 95 (1535); Ames, Cases on Trusts, p. 108. 8 Digby, Hist. Law of Real Prop., 5th ed. (1897), pp. 370-372, calls attention to the scholastic notions which affect the development of the use; see §147, post. resulting use except in the case of a conveyance in fee simple, and that all resulting uses were in fee. Uses Raised Without Transmutation of Possession 108. If the owner did not part with the title, he could create a use in either one of the following ways: first, by covenant to stand seised to uses. This was a covenant by which the owner declared that he held the property for the use of the persons designated. Such a covenant was valid only in so far as the parties designated stood in a relation of blood or affection to the covenantor. Second, by bargain and sale, which was where the owner agreed to sell the property to someone else. A consideration was necessary to support the bargain and sale. After the execution of the agreement, the use was in the bargainee. The use could be raised without transmutation of possession only by words in praesenti and upon a good and valuable consideration. Where there was a transmutation of possession, the feoffor could keep the land for nothing unless the use was enforced, and the fact, therefore, that the original declaration of trust was gratuitous, was immaterial. When there was no transmutation of possession, the owner himself would keep the land which was his own before if the use was not enforced. Chancery, therefore, requires a consideration before enforcing the use against him, and depriving him of his property. These principles underlie the modern law of trusts. Definition of a Use 9 109. A use, therefore, was a relation enforceable only in chancery, in which the feoffee to uses had no duties to perform, except (1) to permit the cestui que use to take the rents and profits, (2) to convey the legal title at the latter's direction, and was the exact counterpart of what is known in modern times as a dry or passive trust. Special Trusts 110. It was frequently the case that the feoffor vested active duties in the feoffee, directing him to take and receive 9 Callard v. Callard, Croke. Eliz. 344 (1594), s. c. Moore, 687, placitum, 950 (1596); Ames, Cases on Trusts, p. 117. See Ames, Hist. of Assumpsit, 2 Harv. the rents and profits or perform some other duty in connection with the legal title. Such directions created an active or special trust which was different from a use.10 There were, therefore, two distinct equitable limitations: the use and the trust. We will now consider the statute of uses, and the effect which it had on these two relations, and then briefly notice the law relating to trusts. 10 Bacon, Uses, Rowe's ed., pp. 8, 9; Saunders, Uses, Vol. 1. pp. 3, 4, 5 (1823). |