law, where he was considered as absolute owner; but a different doctrine was maintained in the courts of equity, which treated cestuy que use, on the other hand, as the true proprietor, and compelled the feoffee to account to him for the rents and profits, and to hold the land at his disposal.

Uses, however, might be created, not only by an express agreement or declaration, but by mere implication from the nature of the conveyance itself. Thus if a man made a feoffment in fee to another, without any consideration, equity would presume that he meant it to the use of himself, and would therefore raise an implied use for his benefit (x), unless he expressly declared it to be to the use of another, and then nothing was presumed contrary to his own expressions (y). And here we may observe, that uses thus returning by way of implication to the grantor himself, were called resulting uses (z). Uses also were capable of being raised in some cases upon mere contracts (a), without the formality of any conveyance; and this either expressly or by implication. For if a man, in consideration of natural affection, covenanted, that is, contracted under the solemnity of a deed (b), that he would stand seised of his land to the use of some near relative named (c), or of a wife, actual or intended, a court of equity, even though no valuable consideration passed, would enforce the use, and treat the covenantor thereafter, as a mere trustee for the party whose benefit was designed. So if a man had bargained and sold his land to another, (that is, agreed to sell it him) for pecuniary consideration, but had made no actual feoffment or conveyance, equity would, under such circumstances,

consider the estate as belonging to the party who had paid the money, and would consequently hold the bargainor (as in the former case) to be seised of the land from thenceforth to the use of the bargainee (d).

No contracts of either kind, however, would be enforced in equity, unless founded upon the particular species of consideration above described as appropriate to the case; a gratuitous engagement in favour of a stranger being insufficient to raise a use.

In general all persons were of capacity thus to become trustees, and to hold to a use (e). There were, however, some exceptions. For persons attainted and aliens were for this (as for all other purposes) disqualified from holding land(ƒ); and the doctrine was also established, [that neither the king nor queen, on account of their dignity royal (g), nor any corporation aggregate, on account of its limited capacity (h), could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust.

As the feoffee (or person seised) to uses was considered at the common law as absolute owner, his estate was of course subject to all the incidents which would attach to one held for his own benefit. It would devolve to his legal representative at his death, and might be aliened, or forfeited by his act while living, or become subject to execution for his debts, or to escheat for want of heir. His wife also would be entitled to dower; and where the feoffee was a married woman, her husband might claim an estate by the curtesy (¿).

It is to be observed too, that persons claiming under

(d) 2 Sand. Us. 50, 2d ed. But the precise technical words of bargain and sale, or covenant to stand seised, are not essential, if there are words tantamount; Treat. on Equity, book ii. chap. 3, s. 1.

(e) 1 Sand. Us. 62, 2d ed. (f) Ibid. 65.

(g) 2 Bl. Com. 330; 1 Sand. Us. 65, 2d. ed.

(h) Ibid.

(i) 1 Sand. Us. 75, 76, 2d ed.; 1 Cruise Dig. 403. As to execution for his debts, vide Gilb. Us. by Sugd. 3rd edit. p. 15; Escheat, 2 Bl. Com. 330.

derivative titles like these were in some cases entitled to hold for their own benefit, free from any equitable obligation to perform the trust. Originally, indeed, it was held that the Court of Chancery could give relief only against the person himself in whom the trust was first reposed, and not against such as might derive title through him. [This was altered in the reign of Hen. VI. with respect to the heir (k), and afterwards the same rule by a parity of reason was extended to such alienees as had purchased either without a valuable consideration or with an express notice of the use (1). But a purchaser for a valuable consideration without notice, or a creditor obtaining execution (m), [might hold the land discharged of any such confidence; and so if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use, because they were not parties to the trust, but came in by act of law (n); though doubtless their title in reason was no better than that of the heir.]

The capacity of becoming cestui que use was even more extensive than that of becoming trustee, and it may be sufficient to observe generally, that all persons competent to take a conveyance of land might also take an interest. in it by way of use (o).

The nature of this interest, constituting as it did a new sort of ownership, wholly distinct from the common law or legal estate, to which also our attention was formerly directed, demands a particular consideration. It was in its nature so exclusively equitable, that the courts of common law accounted the cestui que use, if out of possession, as a mere stranger to the land; if in possession, as no

(k) Keilw. 42; vide Year-book, 22 Edw. 4, c. 6.

(1) Keilw. 46.

(m) Gilb. Uses by Sugd. 3rd edit. p. 15, 16.

(n) See 1 Sand. Uses, 229, 2d ed. (0) 1 Sand. Uses, 66.

more than a tenant at sufferance. They consequently allowed no effect to his alienation or demise of the land, if made without consent of the trustee, and they held it not liable to forfeiture for his default, nor to execution for his debts (p). In equity, however, the properties or incidents of this kind of ownership were in a great measure assimilated to those of a legal estate; while on the other hand they were settled in certain respects upon principles more advantageous to the owner. These properties were principally as follows:-1. Contrary to the course of the common law with respect to freehold estate, uses even for life, or for a greater interest, might be created or assigned [by secret deeds between the parties, or be devised by last will or testament (q); for as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary, or in its nature applicable to the case. 2. As a use was exempt from the restrictions of the common law as to the manner of creation or transfer, so it enjoyed a similar freedom as regards the modification of the interest itself. Thus uses might not only be in possession, reversion, or remainder, vested or contingent, according to the fashion of legal estates, but might also be limited for future interests not corresponding with the legal idea of a remainder. When in the nature of estates in possession, reversion, or vested remainder, they were called uses in esse; in other cases they were described as uses in futuro, contingent uses, or uses in possibility (r). 3. A use was not (as before remarked) subject to forfeiture(s), and did not escheat upon attainder, or other defect of blood; [for escheats, and the like, are the consequence of tenure, and uses are held of nobody. 4. Again, no wife could claim dower, or husband an estate by curtesy, of a use(t), for no trust was declared

(p) 2 Bl.Com. 331; 1 Sand. Uses, 73, 74, 2d ed.

(1) Bac. Read. Uses, 312, 308; 1 Sand. Uses, 72, 2d ed.

(r) Chudleigh's case, 1 Rep. 136 b,

121 b; Lovies' case, 10 Rep. 85 a; Bac. Read. Us. ; Bac. Ab. Uses (G). (s) Sup. p. 331.

(t) Vernon's case, 4 Rep. 1 b; 2 And. 75.

[for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage, some joint estate to the use of the husband and wife for their lives, which was the original of modern jointures (u). 5. Lastly, a use could not be extended by writ of elegit, or other legal process, for the debts of cestui que use,] though the legal estate was liable to such execution for the debt of the legal tenant.

The state of things here described was, however, attended with a variety of inconveniences. A person in possession of the land as apparent owner, would often, in reality, be a mere cestui que use, and consequently no more than a tenant at sufferance in regard to the legal estate; or he might, on the other hand, be a mere trustee, the equitable ownership, and the right to receive the profits residing in another(a); and as putting an estate into use was often a secret transaction, which strangers had no means of becoming acquainted with (y), they were in constant danger of being deceived as to the true state of the title. We cannot therefore be surprised at Lord Bacon's complaint that [this course of proceeding "was turned to "deceive many of their just and reasonable rights. A (6 man that had cause to sue for land, knew not against "whom to bring his action, or who was the owner of it. "The wife was defrauded of her thirds, the husband of "his curtesy, the lord of his wardship, relief, heriot, and "escheat; the creditor of his extent for debt, and the "tenant of his lease (z)." To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestui que use (a), allowed actions for the freehold to be brought against him if in actual pernancy or enjoyment of the