LECTURE LX.

OF USES AND TRUSTS.

(1.) of uses.

A use is where the legal estate of lands is in A., in trust, that B. shall take the profits, and that A. will make and execute estates according to the direction of B." Before the statute of uses, a use was a mere confidence in a friend, to whom the estate was conveyed by the owner without consideration, to dispose of it upon trusts designated at the time, or to be afterwards appointed by the real owner. But the trustee was, to all intents and purposes, the real owner of the estate at law, and the cestui que use had only a confidence or trust, for which he had no remedy at the common law.

Uses existed in the Roman law, under the name of fidei commissa, or trusts. They were introduced by testators to evade the municipal law, which disabled certain persons, as exiles and strangers, from being heirs or legatees. The inheritance or legacy was given to a person competent to take, in trust, for the real objects of the testator's bounty. But such a confidence was precarious, and was called by the Roman lawyers jus precarium, for it rested entirely in the good faith of the trustee, who was under no legal obligation to execute it. To invoke the patronage of the emperor in favour of these defenceless trusts, they were cre

a Gilbert on Uses, p. 1.

ated under an appeal to him, as rogote per salutem, or per fortunam Augusti. Augustus was flattered by the appeal, and directed the prætor to afford a remedy to the cestui que trust, and these fiduciary interests increased so fast, that a special equity jurisdiction was created to enforce the performance of the trusts. This "particular chancellor for uses," as Lord Bacon terms him, who was charged with the support of these trusts, was called prætor fidei commissarius. If the testator, in his will, appointed Titius to be his heir, and requested him, as soon as he should enter upon the inheritance, to restore it to Caius, he was bound to do it, in obedience to the trust reposed in him. The Emperor Justinian gave greater efficacy to the remedy against the trustee, by authorizing the prætor, in cases where the trust could not otherwise be proved, to make the heir, or any legatee, disclose or deny the trust upon oath, and when the trust appeared, to compel the performance of it."

The English ecclesiastics borrowed uses from the Roman law, and introduced them into England in the reign of Edward III. or Richard II., to evade the statutes of nortmain, by granting lands to third persons to the use of religious houses, and which the clerical chancellors held to be fidei commissa, and binding in conscience." When this evasion of law was met and suppressed by the statute of 15 Rich. II., uses were applied to save lands from the effects of attainders; for the use, being a mere right in equity to the profits of land, was exempt from feudal responsibilities, and uses were afterwards applied to a variety of purposes in the business of civil life, and grew up into a refined and regular system. They were required by the

a Inst. 2. 23. 1. Vinnius, h. t. Bacon on the Statute of Uses, Lav Tracts, p. 315.

b Inst. 2. 23. 12.

c 2 Blacks. Com. 328. Sanders on Uses ared Trusts, p. 14.

advancing state of society, and the growth of commerce. The simplicity and strictness of the common law would not admit of secret transfers of property, or of dispositions of it by will, or of those family settlements which became convenient and desirable. A fee could not be mounted upon a fee, or an estate made to shift from one person to another by matter ex post facto; nor could a freehold be made to commence in futuro, or an estate spring up at a future period independently of any other, nor could a power be reserved to limit the estate, or create charges on it in derogation of the original feoffment. All such refinements were repugnant to the plain, direct mode of dealing, natural to simple manners and unlettered ages. The doctrine of livery of seisin rendered it impracticable to raise future uses upon feoffment, and if a person wished to create an estate for life, or in tail, in himself, he was obliged to convey the whole fee to a third person, and then take back the interest required. Conditions annexed to the feoffment would not answer the purpose, for none other than the grantor, or his heir, could enter for the breach of it; and the power of a freeholder to destroy all contingent estates by feoffment or fine, rendered all such future limitations at common law very precarious.

The facility with which estates might be modified, and future interests secured, facilitated the growth of uses, which were so entirely different in their character from the stern and unaccommodating genius of feudal tenure. Uses, said Lord Bacon, "stand upon their own reasons, utterly differing from cases of possession." They were well adapted to answer the various purposes to which estates at common law could not be made subservient, by means of the relation of trustee and cestui que use, and

a Bacon's Law Tracts, 310. Lord Bacon's reading on the Statute of Uses, has a scholastic and quaint air pervading it; but it is very instructive to read, because it is profoundly intelligent.

by the power of disposing of uses by will, and by means of shifting, secondary, contingent, springing, and resulting uses, and by the reservation of a power to revoke the uses of the estate, and direct others. These were pliable qualities belonging to uses, and which were utterly unknown to the common law, and grew up under the more liberal. and more cultivated principles of equity jurisprudence.

The contrast between uses and estates at law was extremely striking. When uses were created before the statute of uses, there was a confidence that the feoffee would suffer the feoffor to take the profits, and that the feoffee, upon the request of the feoffor, or notice of his will, would execute the estate to the feoffor and his heirs, or according to his directions. When the direction was complied with, it was essentially a conveyance by the feoffor, through his agent the feoffee, who, though even an infant or feme covert, was deemed in equity competent to execute a power, and appoint a use. The existing law of the land was equally eluded in the selection of the appointee, who might be a corporation, or alien, or traitor, and in the mode of the direction, which might be by parol.

Afthe feoffee to uses was the legal owner of the estate, he was exposed, in his estate, to the ordinary legal claims, debts, and forfeitures; but, to avoid this inconvenience, the feoffees were numerous, and when the number became reuced, a new feoffment was made to other feoffees to the subsisting uses. When uses were raised by conveyances at common law operating by transmutation of possession; the uses declared in such conveyances did not require a consideration. The real owner had devested himself of the legal estate, and the person in whom it was vested. being a mere naked trustee, equity held him bound in con

a Lord Bacon says, that these properties of an use were exceedingly well set forth by Walmsley, J., in a case in 36 Eliz. to which he refers.-Bacon's Law Tracts, 307.

science to execute the directions of the donor. If, however, no uses were declared, then the feoffee, or releasee, took, to the use of the feoffor or releasor, to whom the use resulted; for if there was no consideration, and no declaration of uses, the law would not presume that the feoffor or releasor intended to part with the use. But in the case of covenants to stand seised, and of a bargain and sale, which did not transfer the possession to the covenantee, or bargainee, the inheritance remained in the contracting party; and it was a mere contract, which a court of equity would not enforce, when it was a mere nudum pactum, without consideration. The same principle applied to the case of a release, which was a conveyance operating at common law. Uses were alienable without any words of limitation requisite to carry the absolute interest; for, not being held by tenure, they did not come within the techni cal rules of the common law. A use might be raised after a limitation in fee, or it might be created in futuro, without any preceding limitation; or the order of priority might be changed by shifting uses, or by powers; or a power of revocation might be reserved to the grantor, or to a stranger, to recall and change the uses. Uses were also devisable, as they were only declarations of trust binding in conscience; and Lord Bacon, in opposition to Lord! Coke, who, in Chudleigh's case, had put the origin of uses entirely upon the ground of frauds invented to elude the statutes of mortmain, maintained that uses were introduced to get rid of the inability at common law to devise lands. It is probable that both these causes had their operation, though the doctrine of uses existed in the civil law, and

, 6.

a Bacon on Uses, Law Tracts, p. 312. Sugden on Powers, p. 5, 6 b 1 Co. 87. b. 100. b.

c Bro. Feoff. al use, pl. 30. Jenk. Cent. 8. Ca. 52. Co. Litt. 237. a. Preston on Estates, vol. i. 154.

d Bacon's Law Tracts, p. 316.