statute. If the estate of the feoffee to such uses be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever; whereas, by an executory devise, the freehold is transferred to the future devisee. Contingent 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,b 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 to the same period to which the law *296 *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. 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 2 Blacks. Com. 334. Fearne on Executory Devises, by Powell, 86, note. b Bacon on Uses, Law Tracts, 335. 340. c Dyer, J., in Bawell & Lucas' Case, 2 Leon. 221. Holt, Ch. J., in Davis v. Speed, 12 Mod. Rep. 38. 2 Salk. 675. S. C. Willes' Rep. 180. 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., subject to a shifting or secondary use in fee in B. So, if the proviso be, *that C. may re- *297 voke the use to A., and limit it to B., then A. is seised in 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,b to be such a limitation of property as renders it inalienable 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 de • 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. stroys 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. (3.) Springing uses are limited to arise on a future *298 event, *where no preceding estate is limited, 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 ■ Nicholls v. Sheffield, 2 Bro. 218. St. George v. St. George, in the House of Lords, cited in Gilbert on Uses, by Sugden, 157. b 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. cb. 3. p. 231. 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 springing use took effect by the death of C. A good springing use must be limited at once, independently of any preceding estate, and not by way of remainder, for it then becomes a contingent and not a springing use; and contingent uses, as we have already seen, are subject to the same rules precisely as contingent remainders. The other mode of conveyance by which uses may be raised, operates, not by transmutation of the estate of the grantor, but the use is severed out of the grantor's seisin, and executed by the statute. This is the case in covenants to stand seised, and in conveyances by bargain and sale. (4.) Future or contingent uses are limited to take effect as remainders. If lands be granted to A. in fee, to the use of B. on his return from Rome, it is a future contingent use, because it is uncertain whether B. will ever return.b *(5.) If the use limited by deed expired, or could *299 not vest, or was not to vest but upon a contingency, the use resulted back to the grantor who created it. The rule is the same when no uses are declared by the conveyance. So much of the use as the owner of the land does not dispose of, remains with him. If he conveys without any declaration of uses, or to such uses as he shall thereafter appoint, or to the use of a third person on the occurrence of a specified event, in all such cases there is a use resulting back to the grantor.c (6.) The English doctrine of uses and trusts, under the statute of 27 Henry VIII., and the conveyances founded thereon, • Gilbert on Uses, by Sugden, 163. 176. Sir Edward Sugden, in a note to his edition of Gilbert on Uses, 152-178, has given a clear and methodical analysis, definition and description of these various modifications of future uses. In Mr. Preston's Abstracts of Title, vol. i. 105, 106, 107, and vol. ii. 151, we have, also, illustrations of the various shades of distinction between them. • Co. Litt. 23. a. 271. b. Sir E. Clere's Case, 6 Co. 17. b. Armstrong v. Wholesey, 2 Wils. Rep. 19. have been very generally introduced into the jurisprudence of this country. But in the remarks which accompanied the bill for the revision of the New-York statutes, relative to uses and trusts, the following objections were made to uses as they now exist: (1.) They render conveyances more complex, verbose and expensive than is requisite, and perpetuate in deeds the use of a technical language, unintelligible as a "mysterious jargon," to all but the members of one learned profession. (2.) Limitations intended to take effect at a future day, may be defeated by a disturbance of the seisin, arising from a forfeiture or change of the estate of the person seised to the use. (3.) The difficulty exists of determining whether a particular limitation is to take effect as an executed use, as an estate at common law, or as a trust. These objections were deemed so strong and unanswerable, as to induce the revisers to recommend the entire abolition of uses. They con*300 sidered, that by making a *grant, without the actual delivery of possession, or livery of seisin, effectual to pass every estate and interest in land, the utility of conveyances deriving their effect from the statute of uses would be superseded; and that the new modifications of property which uses have sanctioned, would be preserved by repealing the rules of the common law, by which they were prohibited, and permitting every estate to be created by grant which can be created by devise. The New-York Revised Statutes have, accordingly, declared, that uses and trusts, except as authorized and modified in the article, were abolished; and every estate and interest in land is declared to be a legal right, or • Chamberlain v. Crane, 1 N. H. Rep. 64. Exeter v. Odiorne, id. 237. French v. French, 3 ibid. 239. Parsons, Ch. J., in Marshall v. Fish, 6 Mass. Rep. 31. Johns. Rep. passim. 3 Binney's Rep. 619. It is doubted whether the statute of uses was ever in force in the state of Ohio. Thompson v. Gibson, 2 Ohio Rep. 439. Helfeinstine v. Garrard, ibid. 270. The statute of uses of Henry VIII. was a part of the colonial law of Virginia; but the Revised Statutes of Virginia, since 1792, adopted as a substitute, the provisions which only executes the seisin to the use in the cases of deeds of bargain and sale, of lease and release, and of covenants to stand seised to use. The statute only executes the seisin to the use in those specified cases, and does not, like the English statute, include every case where any person should stand seised to the use of any other person. Lomax's Digest of the Laws respecting Real Property, vol. i. 188. b Vol. i. 727. sec. 45, 46. |