equity, in conformity to the rule of law, gives to A. the CHAP. III. beneficial interest for life only; but if it can be collected from the instrument that A. was meant to have the absolute interest, equity, esteeming the intention more than the rule, gives him the beneficial fee without the word heirs. So, the contract of an owner in fee to sell the land to A., operates in equity, from the nature of the transaction, as a valid disposition of the fee without the word heirs. Law and Equity run parallel courses, so long as legal and equitable ownerships may, without injustice or absurdity, be subjected to the same rules; diverging at the point where the legal substance, and the abstract personal right, become incapable of rational assimilation. With those forms and doctrines which are founded on the corporal possession, tradition, or tenure of the land itself, (as, livery, forfeiture, escheat,) equity cannot possibly be conversant. To attempt the extension of such doctrines and forms to trusts, on the ground. of analogy, would be to pervert the term, and to destroy, in seeking to promote, the harmony of the system. Under the modern system of trusts, the equitable interest has obtained a yet more complete exemption from the control of the common law judge, than it ever enjoyed while existing in the shape of the ancient use, which, by the operation of several statutes (a) directed against uses, was brought within his occasional cognizance. Thirdly, As to the creation and transfer of equitable interests. To the express creation of a trust, or the transfer from man to man of the benefit of an existing trust, nothing more is necessary than a manifestation of (a) Suprà, 37. So, by the statute of frauds, 29 Cha. 2, c. 3, s. 10, trust estates are made liable to execution upon a judgment; and trusts of the fee are made assets by descent. form a system than uses before more distinct the statute. 3. Trusts, in re- transfer. without forma- Of contracts for sale and specific performance. CHAP. III. the intention, which may be indicated by any form of words. The statute of frauds (a) requires writing, but no statute, rule, or principle, has prescribed any other solemnity or observance; and the very idea of a trust, which has nothing real or tangible in its nature, seems to repel the notion of a conveyance. A contract for the sale of a freehold interest in land, not having the requisites of the statute of inrolments, (a) and therefore inoperative to confer any title to the land at law, is nevertheless binding in equity, just as a bargain and sale before the statute of uses was effectual, in whatever form conceived, to create an obligation which the chancery enforced. As the ancient bargain and sale raised a use, so the modern contract for sale raises a trust in favour of the purchaser. In a court of law, which cannot recognize an alienation until perfected by an actual conveyance, the only remedy upon such a contract is an action to recover damages for its non-performance, but equity decrees what is called a specific performance, obliging the contracting parties to do in specie the very thing agreed to be done. Suits for the specific performance of contracts, which necessarily involve the investigation of titles, the taking of accounts, and various other matters, fruitful of nice and difficult questions of law and fact, draw largely upon the time learning and acumen of the equity judge. In truth, all instruments which affect only the equitable or beneficial interest in land-from the equitable right to enjoy the land for ever, down to the equitable right to enjoy it for a year-are in the nature of contracts, or agreements, to be specifically performed in equity. Although agree(a) Suprà, 59. (b) 29 Cha. 2, c. 3, s. 79. Trusts arising by construction, or transferred by operation, of law, are saved by s. 9. And the equitable doctrine, as to the part performance of verbal contracts, has made fresh inroads upon the statute. ments concerning land which, before the statute of frauds, CHAP. III. were valid without writing, are required by that statute to be reduced into writing, and signed by the party to be bound, or by the authorized agent of such party, (a) yet such agreements may still be made by any form of words whatever, and they are sometimes implied, in defiance of the statute, from circumstances alone. If, therefore, the fee is vested in A., in trust for B., who sells it to C., either giving C. a written receipt for the purchase money, expressive of the substance of the transaction, or partly performing a mere verbal contract by letting him into possession of the land, C. acquires (the purchase-money being paid) a perfect title to the equitable fee, and may at any time call upon A. for a legal conveyance of the land. But although the conclusion that a contract in Practice of con veying equitany form, or, indeed, mere informality itself, may ope- able interests rate as a valid disposition in equity, appears irresistible upon principle, and although it is obvious that an interest purely equitable, being merely a right against the person of the trustee, cannot become the legitimate subject of a conveyance, yet, in practice, the owner of such an interest is made to convey with all the pomp and circumstance proper only to the assurance of a legal proprietor. (b) Before we dismiss the subject of trusts, it will be proper to add a few remarks explanatory of the causes to which the existence of trusts merely passive may be traced. We have seen that passive uses were resorted to before the statute of uses, in order to escape from the (a) Sect. 4. (b) Thus, after a mortgage of the legal fee, the equity of redemp tion is conveyed by lease and release; and, even after a contract for the sale of an equitable fee, (which passes by the contract,) the pur chase is completed by lease and release. according to legal forms. Passive truststheir prevalence at this day referred to several causes, viz. CHAP. III. trammels and hardships of the common law," the per 1.-to the necessity of guarding against forfeiture; and herein of trus tees to preserve contingent remainders. manent division of property into legal and equitable interests being clearly an invention to lessen the force of some pre-existing law."(a) For similar reasons, equitable interests were revived, and have continued to flourish in the form of trusts. The nation, indeed, has long ceased to feel the iron grasp of the military chieftain; the days of chivalry are past; but still legal ownerships are attended with some peculiar inconveniences, the offspring of tenure, —that prolific parent of passive trusts. 1. The liability of a legal estate for life, whether created at common law or by the limitation of a use, to forfeiture, would alone have induced the necessity of making settlements by means of trusts in equity, where no forfeiture can be incurred, if lawyers had not hit upon a device, which we may take this opportunity of explaining. This device, when the use is limited to A. for life, with remainder (contingent) to his unborn children, interposes a remainder for the life of A. to trustees, who, on the commission by A. of an act of forfeiture, (b) may enter and preserve the possession for the future children. So, when the use is limited to A. for life, with remainder (contingent) to the unborn children of B., a mesne remainder to trustees for the life of B. is a necessary outwork to protect the contingent remainder. (c) These functionaries, who play a silent and unconscious, though important part, in almost every legal settlement, are 2.-to the desire called trustees to preserve contingent remainders. 2. The of preventing dower. right of the wife of a sole owner of the legal inheritance to be endowed of one-third of the land at his death, also gave occasion, and, notwithstanding a recent statute,(d) (a) Sand. Us. 10, n. (c) Suprà, 12. still gives occasion to passive trusts. In order to exclude CHAP. III. dower, which, as the wife may refuse to join in a sale, or, if consenting, is incompetent to part with an interest in freehold land otherwise than by means of certain formalities, (heretofore a fine or recovery, but now a deed acknowledged (a),) presents an obstacle to alienation, it was usual, and may still be expedient, to lodge a portion clusion of lease of uses. of the legal ownership in a trustee. 3. Even since the 3.—to the ductility of trusts. statute of uses, the equitable interest is, in some respects, more tractable than the legal estate. 4. Again, as lease- 4.-to the exholds for years are not affected by the statute of uses, and holds for years consequently do not participate in the facilities which it from the statute affords for moulding the legal ownership, passive trusts are employed for effecting settlements, and various other dispositions of that species of property. 5. It, moreover, 5.-to mistakes in framing, or often happens that, from a mistake in framing the instru- the convenience ment, or merely for the greater convenience of framing deed. of framing the it, the equitable ownership is divided from the legal. 6. We still more frequently find, that, after the purposes 6.—to the not getting in of of an active trust have been answered, or have become satisfied legal incapable of effect, the legal ownership is allowed, either estates. from inadvertence, or from the desire of avoiding the expense of a reconveyance, to remain outstanding in the trustee. Hence passive trusts, involving no duty, are so common at this day, that the separation of the legal from the equitable ownership exists, to a greater or a less extent, in almost every title. (a) Infrà, chap. V. |