statute of uses of 27 Hen. VIII. had upon contingent uses, was formerly a matter of great and protracted discussion. The history of the judicial controversy on this subject is a great curiosity, and though we have not much practical concern with it in these United States, it will well reward a few moments' attention of the diligent and inquisitive student who desires to understand the progress, mutations, and genius, of the very complicated machinery of the English law of real estates.

Before the statute of uses, the feoffees to uses were seised of the legal estate, and if they were disseised, no use could be executed until, by their entry, they had regained their seisin, for the statute only executed those uses which had a seisin to support them. After the statute of uses there was great difficulty to ascertain where the estate which was to support the contingent uses resided. Somǝ held, that the estate was vested in the first cestui que use, subject to the uses which should be executed out of his seisin; but this opinion was untenable, for a use could not arise out of a use. It was again held, that the seisin to serve contingent uses was in nubibus, or in custodia legis, or had no substantial residence any where, and the conclusion attached to these opinions was, that contingent uses could not be barred by any act whatever. Others were of opinion, that so much of the inheritance as was limited to the contingent uses, remained actually vested in the feoffees until the uses arose. But the prevailing doctrine was, that there remained no actual estate, and only a possibility of seisin, or a scintilla juris in the feoffees, or releasees to uses, to serve the contingent uses as they arose. The doctrine of scintilla juris, Mr. Sugden says, was first started in Brent's case, in 16th Eliz. and the judges had great

b

a Delamere v. Sermon, Plowd. Rep. 346. b Sugden on Powers, 2d London ed. 13, 14. c Dyer, 340. a. 2 Leon. 14.

difficulties in settling the construction of contingent uses. One opinion was, that the feoffees had a fee simple determinable to continue until the future use arose, and that they were not devested of the whole interest until the execution of all the uses limited upon the feoffment, but a sufficient portion of the fee simple to serve the contingent uses, remained vested in the feoffees. It was also held, that the estate, in the interim, resulted to the feoffor. A majority of the court agreed, that the statute devested the feoffees of all the estate when the contingency arose by a person being in esse to take.

In Manning and Andrew's case, the judges were equally unsettled in their notions respecting the operation of the statute on contingent uses. Some of them were of opinion, that a sufficient actual estate remained in the feoffees to support the uses, while others thought that the feoffees were, by the statute of uses, made mere conduit pipes, through which the estate was conveyed to the uses as they arose, and that they were devested of all estate. The statute drew the confidence out of the feoffees, and reposed it upon the land, which rendered the use to every person entitled in his due season under the limitation. According to this opinion, the feoffees had no right of entry, and could not, by release, confirmation, or otherwise, do any thing to the prejudice of the uses limited. In a few years Chudleigh's case arose, and has ever been regarded as a great and leading case on the doctrine of contingent uses.

The principal question in that case was concerning the power of feoffees to uses, to destroy contingent uses by fine or feoffment, before the uses came into being. It was a very complex settlement case. Lands were conveyed by

a 1 Leon. 256.

b 1 Co. 120. 1 Anderson, 309. Mr. Sugden says, that Ch. J. Anderson's report of this case is indisputably the best, and an abstract of the translation of it is in Gilbert's Uses, by Sugden, App. p. 521.

feoffment, to feoffees, in a series of successive uses, and, among others, to the use of the feoffees and their heirs, during the life of the settlor's eldest son, remainder to the grandsons of the settlor, successively in tail, with remainder to the right heirs of the eldest son. The feoffees seised to these uses after the death of the feoffor, enfeoffed his eldest son in fee without consideration, and with notice in the son of the uses in the settlement. The eldest son had a son born thereafter, and after that birth he conveyed to a stranger in fee, and the question arose between the title of the stranger under the conveyance, and the title of the grandson under the settlement. The point was, whether the act of the feoffees destroyed the contingent remainders, so that a use could never arise out of the estate of the feoffees, when the contingency afterwards happened by the birth of the grandson. The judgment of the court was, that by the feoffment the whole estate was devested, and drawn out of the feoffees, and the future contingent uses destroyed.*

The minority of the judges held, that there was no estate, right, or scintilla juris remaining in the feoffees, and that the notion of a scintilla was as imaginary as the Utopia of

a Chudleigh's case was argued several times before all the judges of England, and we find the great names of Bacon and Coke among the counsel who argued the cause. The case is replete with desultory and curious discussion, and some of it Lord Hardwicke admitted to be so refined and speculative, as not to be easily understood. The disposition and policy of the judges was to check contingent uses, which they deemed to be productive of mischiefs, and tending to perpetuities. They regarded the statute of uses as intending to extirpate uses, which were often found to be subtle and fraudulent contrivances, and their evident object was to restore the simplicity and integrity of the common law. Notwithstanding the scholastic and mysterious learning with which this case abounds, it carries with it decisive evidence of the acuteness, industry, and patriotic views of the sages of the law at that day.

Sir Thomas Moore.

The seisin which the feoffees had at

the beginning by the feoffment to them, was sufficient to serve all the future uses when they came in esse, and it was not in their power to affect, suspend, or destroy the future uses, which were in the interim in nubibus, and in the preservation of the law, and the cestui que use was, consequently, entitled. But a large majority of the judges decided, that the feoffment made by the feoffees devested all the estates, and the future uses; and they assimilated contingent uses to contingent remainders, and endeavoured to bring them within the same rules, and render them liable to be destroyed in the same manner. They held, that the statute could not execute any uses that were not in esse, and that contingent uses might be destroyed or discontinued before they came in esse, by all such means, as for instance, by feoffment, forfeiture, or release of the estate, as uses might have been discontinued or destroyed by the common law. They held, that not a mere scintilla remained in the feoffees, but a sufficient estate to serve and support the contingent uses when they came in esse, unless their possession was disturbed by disseisin or otherwise, and then they would have a right of entry, unless they did some act to bar it. One great principle of policy is said to have governed the judges in this case, in holding that contingent remainders might be thus destroyed, was to prevent perpetuities, which were so odious in the ancient law. The decision in Chudleigh's case settled the doctrine that contingent remainders, even by way of use, were destroyed by the destruction of the particular estate. The judges gave the same operation to a feoffment in regard to contingent uses, as they did in respect to contingent remainders.b

a 1 Vent. 306.

b See Sugden on Powers, ch. 1. sec. 3. who has ransacked all these cases, and whose clear analysis of them has guided, and greatly as

The fiction of a scintilla juris, or possibility of entry in the feoffees, or releasees to uses, sufficient to feed the contingent uses when they come into existence, and thereby to enable the statute to execute them, has been deduced from these ancient cases. Such a particle of right or interest has been supposed to be indispensable, to sustain the contingent use. Upon conveyances to uses, when there is a person in esse seised to the uses; the seisin is immediately transferred to the cestui que use, and the whole estate is devested and drawn out of the feoffee or releasee. But contingent uses cannot be executed when there is no cestui que use in existence; and the doctrine has been stated, (and it was assumed by the judges in Chudleigh's case,) that there was a necessity of supposing some person seised to the use, when the contingency arose, to enable the statute to operate. There must be a person seised, and a use in esse, or there cannot be an execution of the possession to the use. The estate in the land is supposed to be transferred to the person who hath the estate in the use, and not to the use, and it is inferred, that no use can become a legal interest, until there shall be a person in whom the estate may vest. When the estate of the use is divided into portions, and there be a discontinuance of the legal estate, the contingent remainder by way of use, cannot be continued, until the trustee, or the tenant of some preceding vested estate, hath by entry or action regained the seisin, so as to serve and supply the contingent uses when the contingency happens. To meet the difficulty, recourse was had to the refinement of a scintilla juris remaining the feoffee to uses, and if the contingent use, limited upon a precedent estate of freehold, should be devested, actual entry was deemed necessary to revest the scintilla juris of

sisted me. Mr. Preston, in his Treatise on Estates, vol. i. 160-171. has gone over the same cases, though not in the same critical and masterly manner.

a Chudleigh's Case, ub. sup. Wegg v. Villers, 2 Rol. Abr. 796. pl. 11-16. 22. l'iner, 223, 229. S. C.