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would naturally be suggested in every community by the wants and policy of civilized life. Uses were certainly perverted to mischievous purposes, and the complaint is constant and vehement in the old books, and particularly in Chudleigh's case, and in the preamble to the statute of uses, against the abuses and frauds which were practised by uses prior to the statute of uses. It was the intention of the statute to extirpate such grievances, by destroying the estate of the feoffee to uses, and reducing the estate in the use to an estate in the land. There was a continual struggle maintained for upwards of a century, between the patrons of uses and the English Parliament, the one constantly masking property, and separating the open legal title from the secret equitable ownership, and the
other, by a succession of statutes, endeavouring to fix the | duties and obligations of ownership upon the cestui que use. At last the statute of 27 Hen. VIII., commonly called the statute of uses, transferred the uses into possession by turning the interest of the cestui que use into a legal estate, and annihilating the intermediate estate of the feoffee, so that if a feoffment was made to A. and his heirs, to the use of B. and his heirs, B., the cestui que use, became seised of the legal estate by force of the statute. The legal estate, as soon as it passed to A., was immediately drawn out of him and transferred to B., and the use, and the land, became convertible terms.
The equitable doctrine of uses was, by the statute, turned into the courts of law, and became an additional branch of the law of real property. Uses had new and peculiar qualities and capacities. They had none of the lineaments of the feudal system, which had been deeply impressed upon estates at common law. Their influence was suffi. cient to abate the rigour, and, in many respects, to destroy the simplicity of the ancient doctrine. When the use was changed from an equitable to a legal interest, the same qualities which were proper to it in its fiduciary state, fol. 1 lowed it when it became a legal estate. The estate in the
use, when it became an interest in the land, under the staItute, became liable to all those rules to which common
law estates were liable, but the qualities which had attended uses in equity, were not separated from them when they changed their nature, and became an estate in the land itself. If they were contingent in their fiduciary state, they became contingent interests in the land. They were still liable to be overreached by the exercise of pow. ers, and to be shifted, and to cease, by clauses of cesser inserted in the deeds of settlement. The statute transferred the use, with its accompanying conditions and limitations, into the land. Contingent, shifting, and springing uses, presented a method of creating a future interest in land, and executory devises owed their origin to the doctrine of shifting or springing uses. But uses differ from executory devises in this respect; that there must be a person seised to the uses when the contingency happens, or they cannota, be executed by the 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, 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
a Brent's case, 2 Leon. 16. Manwood, J., 2 And. 75. Preslon on Estates, vol. i. 155, 156. 158.
b 2 Blacks. Com. 334. Fearne on Executory Devises, by Powell, 86. note.
< Bacon on Uses, Law Tracts, 335. 340.
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 permits the vesting of an executory devise to be postponed. Uses and 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 manher, and by the same words. The statute intended to have destroyed 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 tri. umphed 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 such quality, manner and form, as he had in the use. The com* plex 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
a Dyer, J. in Bawell and Lucas' case, 2 Leon. 221. Holt, Ch. d. in Davis v. Speed, 12 Mod. Rep. 38. 2 Salk. 675. S. C.
lo Willes' Rep. 180.
ngflessary to distinguish with precision their nice and vary
Pig characters, and they all may be included under the ge. Sheral denomination of future uses.
(1.) 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 to 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 revoke 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 a perpetuity, and which is neatly defined by Sir Edward Sugden, to be such a limitation of property as renders it unalienable beyond the period allowed by lay) If, therefore, the object of the power be to create a
Urpetuity, it is void. And yet, in England, it is well setAled, 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 destroys every species of interest ulterior to the tenant's estate. It
sugden, 15260. note. P. C. 592.
a Bro. Feoff. al Uses, 339. a. pl. 30. Mutton's case, Dyer, 274. b. Gilbert on Uses, by Sugden, 152--5.
b Gilbert on Uses, by Sugden, 260. note.
is on this principle that a power of sale or exchange, in case of strict settlement, are valid, though not confined to the period allowed for suspending alienation, provided Ahe 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. (2. Springing uses are limited to arise on a future 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.b 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. These springing uses may be raised by any form of conveyance, but in convey. ances which operate by way of transmutation of possession, as a feoffment, 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 feofiment 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
a Nicholls v. Sheffield, 2 Bro. 218. St. George v. St. George, in the House of Lords, cited in Gilbert on Uses, by Sugden, 157.
6 Woodliff v. Drury, Cro. E. 439. Mutton's case, Dyer, 274. b.
c Roe v. Tranner, 2 Wils. Rep. 75. Holt, Ch. J. 2 Salk. Rep. 675.
d Gilbert on Uses, by Sugden, 163, 176.