[profits (b), made him liable to actions of waste (c), established his conveyance and leases made without the concurrence of his feoffees (d), and gave the lord the wardship of his heir, with certain other feudal perquisites (e).

These provisions all tended to consider cestui que use as the real owner of the estate;] and it being at length resolved to carry this idea into full effect, that celebrated act was passed in the reign of Hen. VIII. which is [usually called the Statute of Uses (f), or in conveyances and pleadings, the Statute for transferring Uses into Possession. The hint seems to have been derived from what was done at the accession of King Richard III., who having, when Duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But to obviate so notorious an injustice, an act of parliament (g) was immediately passed, which ordained that where he had been so enfeoffed jointly with other persons the land should vest in the other feoffees as if he had never been named, and that where he solely stood enfeoffed the estate itself should vest in cestui que use in like manner as he had the use. And so the statute of Hen. VIII., after reciting the various inconveniences before mentioned, and many others, enacts "that where any person shall be seised of lands, &c. to "the use, confidence, or trust of any other person or body "politic, the person or corporation entitled to the use in "fee simple, fee tail, for life or years, or otherwise, or in "remainder or reversion, [shall from henceforth stand and "be seised or possessed of the land, &c. of and in the like "estates as they have in the use, trust, or confidence; "and that the estate of the person so seised to uses shall "be deemed to be in him or them that have the use, in

(b) 1 Rich. 2, c. 9; 4 Hen. 4, c. 7; 11 Hen. 6, c. 3; 1 Hen. 7, c. 1. (c) Stat. 11 Hen. 6, c. 5. (d) Stat. 1 Rich. 3, c. 1.

(e) Stat. 4 Hen. 7, c. 17; 19 Hen. 7, c. 15.

(f) 27 Hen. 8, c. 10.

(g) 1 Rich. 3, c. 5.

["such quality, manner, form, and condition as they had "before in the use." The effect of this statute, wherever it comes into operation, is to execute the use; that is, it instantaneously (h), and as by a kind of parliamentary magic (i), transmutes the equitable interest of cestui que use into a legal estate of the same nature, and makes him tenant of the land accordingly, in lieu of the feoffee to uses, or trustee, whose estate, on the other hand, is at the same moment annihilated (k). The use is also said to be transferred into possession (1); that is, the legal estate conferred on cestui que use is considered as one in actual seisin or possession (according to its nature), and such as requires no farther ceremony for its completion. Thus if a feoffment be made to A. and his heirs to the use of B. and his heirs, an estate in fee simple in possession is eo instanti vested by force of the statute, and without livery of seisin, in B.; and A. takes nothing (m); or if a person seised in fee bargains and sells to A. for a year, for pecuniary consideration (which we may remember constitutes a seisin in the bargainor to the use of A.), A. immediately becomes, by force of the statute and without entry, possessed of the land for the term of one year; the reversion remaining in the bargainor.

Here we must observe, however, that to bring the statute into operation, it is essential that there should not only be a use, but a person seised to the use (n); for its provisions are confined to the case where "one person shall be seised to the use of another person." And therefore where an existing term of years is limited to a use, as where a term of 1000 years is assigned to B. to the use of C., it was decided by the common law judges soon after the statute passed, and has been since uniformly

(h) 2 Bl. Com. 333.

(i) Ibid. 338.

(k) Ibid. 333.

(1) 1 Saund. 251, n. (2), 234 b, n. (4).

(m) A.'s momentary seisin invests no estate in him. James v. Plant, in error, 4 Ad. & El. 766.

(n) 1 Sand. Us. 97, 113, 133; 2 Sand. Us. 58.

held, that the provisions of the statute do not apply to the case, and that the use will consequently remain unexecuted. For of such estates as these (being mere chattels) the termor is not seised, but only possessed(0); and therefore there is no person seised to a use as the statute requires p). Upon the same principle of close adherence to the words of the statute, it is held, that the seisin should be vested in a different person from cestui que use himself; for otherwise the case does not arise of one person seised to the use of another (q). And the seisin should be for an estate as extensive as the use itself; for the statute only executes the use so far as there is a corresponding seisin. Thus if land be conveyed to A. for life to the use of B. in fee, the statute will vest the legal estate in B. only during the life of A. (r).

(0) Vide sup. p. 263, 264.

(p) 1 Sand. Us. 198, 2nd edit.; Gilb. Us. 79; Bac. Read. Us. 335; Dillon v. Fraine, Poph. 76. This case of the limitation of a term of years to a use must be carefully distinguished from the limitation of the freehold to a use for a term of years; for the latter is executed by the statute. Gilb. Us. 80. (9) 1 Sand. Us. 96.

(r) 1 Sand. Us. 113; Gilb. Us. 430. There has been much controversy on the question out of what seisin contingent uses are in certain cases to be executed; and this involves the curious doctrine of scintilla juris. Thus where land is conveyed by feoffment to A. and his heirs, to the use of B. for life, remainder to the use of his unborn sons successively in tail, remainder to the use of C. in fee, it is necessary, in order that the statute should transmute all these uses into legal estates, that there should be a seisin out of which to execute not only the uses in esse to B. and C., but the future uses to the sons of B. And

it has been thought necessary, also, that this seisin should exist with respect to each use at the time of its possessing the character of a use in esse. But all the actual seisin of the feoffee A. is exhausted before any son of B. is born, being drawn out of him to execute the uses in esse to B. and C.; which uses, taken together, extend to the entire inheritance. Here, therefore, is the difficulty; and in order to meet it, it has been held by great authorities that there still remains in the feoffee, though not an actual seisin, yet a scintilla juris, or possibility of future seisin, to serve the future uses as they come into esse. But, according to others, there is no necessity for resorting to this theory; it being sufficient, in their opinion, for the purpose of the statute, that at the time of the creation of the future uses there

should be a seisin to serve them, though there should be none at the time of their coming into esse; and they conclude that in the case supposed there would remain in A. neither any seisin

As regards the use itself also, a similar rigour of construction was adopted by the early expounders of the statute(s), and their doctrines have long since passed into settled law. The decisions of the common law courts on this subject were as follows:-1. It was held that no use can be limited upon a use (t). Thus where A., being seised, bargains and sells for a pecuniary consideration to B., the legal estate passes (as we have seen) by force of the statute to B., to whom the use is limited by the effect of the bargain and sale; and from this it might seem reasonable to infer that where A. bargains and sells to B., to the use of C., the legal estate would vest in C., for the ultimate use is here limited to him. But the judges held that it would vest in this case also in B., and that C. would take nothing; for the statute, they said, would execute the first use limited to B., but not the second, limited to C.; the latter use being a mere nullity, inasmuch as 'no use can be engendered of a use (u)." Upon the same principle a feoffment to A. to the use of B. in trust for C. was held to vest the legal estate in B.; and C. was allowed to take nothing(x). This maxim, that there can be no use upon a use, proceeded upon the principle that, after the limitation of one, another must be considered as repugnant, and therefore void. Yet the doctrine, however firmly settled, is, upon the whole, not satisfactory; for it was clearly intended, in the cases above supposed, that C. should have the beneficial interest; and the instant the first use was executed in B. he might without impropriety have been considered as seised to the use of C.;

66

nor any possibility of seisin after the uses to B. and C. were executed. Dy. 340; 2 Sid. 98; 1 Sand. Us. 147; Fearne, by Butler, 291, n.(h); 1 Prest. Est. 170; Sugd. Gilb. Us. 131, n. (10); Burt. Compend. 60; Hayes, Convey.

(s) This strictness has been attributed to a disinclination on the part

of the judges to carry the abolition of uses so far as had been intended by the legislature. First Real Prop. Rep.

8.

(t) Gilb.Us. 347; 1 Sand. Us. 198, 2nd ed.; 2 Bl. Com. 335. (u) Tyrrel's case, Dy. 155.

(x) 2 Bl. Com. 336; Gilb. Us. Sugd. Ix.

which second use the statute might as well have been permitted to execute as it did the first (y). 2. The judges held, and the doctrine has since been confirmed by a variety of decisions, that where the person entrusted has any active duty to perform, he cannot be considered as holding to a use, or at least not such a use as the statute executes (2). Thus where lands were given to B. and his heirs, with a direction to receive and pay over the profits to C., this was held to be no use in C.; though, on the other hand, if the direction were to permit C. to take the profits, this was considered to be a use executed in him(a); for here, we may observe, is no active duty appointed for the trustee.

The uses (or intended uses) which were thus excluded from the operation of the statute, because there was no seisin to support them, or because they were limited on a precedent use, did not fail, nevertheless, to obtain protection from the courts of equity; for in both cases it was evident that the person directed to hold to the purpose which the statute was incompetent to execute (or, according to the examples, B.) was never intended by the parties to have any beneficial interest, and that his capacity was merely fiduciary (b). Therefore the Court of Chancery determined that though the purposes pointed out were not uses executable by the statute, yet a trust subsisted in the person directed to perform the purpose, and that such trust was binding, if not at law, yet in conscience and in equity. To this the reason of mankind assented (c); and

(y) 2 Bl. Com. 336.

(2) Home fait feoffment in fee al son use pur term de vie, et que puis son decease I. N. prendra les profits: ceo fait un use in I. N. Contrar.s'il dit que puis son mort ses feoffees prendront les profits et liveront eux al I. N.: ceo ne fait use in I. N. car il n'ad eux nisi par les mains les feoffees. Bro. Feoff. al Uses, 52; 36 Hen. 8; 2 Saund. by

Wms. 11 a, n. (17); Doe v. Homfray, 6 Ad. & El. 206; Browne v. Ramsden, 8 Taunt. 564; Doe v. Scott, 4 Bing. 507.

(a) But if C. were a married woman, the case would be otherwise. Doe v. Scott, 4 Bing. 507; Doe v. Edlin, 4 Ad. & El. 582. (b) 2 Bl. Com. 336. (c) Ibid.