Tyrrell's Cuse.

deemed and adjudged to be in him or them that had or thereafter should have such use, confidence, or trust, after such quality, manner, form, and condition, as they had had before in or to the use, confidence, or trust, that was in them." The statute thus "executed" the use as it was termed, that is, conveyed the right to the ownership and possession at common law to the cestui que use, leaving no estate or interest in the person holding to the use.

where

Soon after the statute it was decided in Tyrrell's Case that there could not be "a use upon a use"; so that if land were conveyed to A., to the use of B., to the use of C., the statute executed the use in B. only, and the use declared in C.'s favour, was a nullity at law. This decision, which a great authority tells us must have surprised every one who was not sufficiently learned to have lost his common sense, had the effect of completely defeating (so far as the Courts of Common Law were concerned) the avowed object of the statute. The Court of Chancery however intervened, and held that, though the use in C.'s favour was void at law, it should be treated as valid in equity, and should create an equitable estate in C. The effect of this doctrine was to defeat the intended operation of the Statute of Uses, by reviving equitable estates in lands to which the statute applied, nothing more being needed for this purpose than the formula of a 66 use upon a use." The statute it will be observed only deals with cases w any person or persons stand seized of any lands to the use, confidence, or trust of any other person or persons. It accordingly does not apply to cases where the person seized and the beneficiary are the same person as where the grant is made unto and to the use of A. In such a case A. takes both the legal and the beneficial ownership by the common law, and not under the statute. This doctrine received a very remarkable illustration in some cases which came before the Courts in recent years in connection with the subject of election law. In one of these cases the grant of a rent-charge was practically in the form "unto and to the use of A.," in the others the words practically amounted to a grant to A. to the use of B. It was held that in the first case the actual "possession "" was to be reckoned only from the date of entry, while in the other two cases the time of possession began to run from the actual date of the grant itself (1).

(1) Orme's Case, L. R 8 C. P. 281; Hadfield's Case, L. R. 8 C. P. 306; Lowcock v Overseers of Broughton,

12 Q. B. D. 369; in the first of which cases the law on the subject is most elaborately considered.

Here, on the

The effect of the Statute of Uses must also be considered in Statute of Uses. reference to powers of appointment (post, p. 175). Thus, if an estate were conveyed to A. and his heirs to the use of such persons as B. should appoint, and B. appoints to C. appointment, C. takes the legal estate by force of the statute. It has been said that the only practical effect of the Statute of Uses was to add the words "unto and to the use to every conveyance; but, as has been well pointed out by Mr. Haynes, two very remarkable results followed from the statute as read in the light of the decision in Tyrrell's case and subsequent cases. 1. Facilities were afforded for creating through the medium of it a variety of legal estates unknown to the common law with all the flexibility and adaptability to circumstances.

The system of uses revived with a new and more healthful vigour under the name of trusts. 2. The trust was gradually, though not without a struggle by the end of the reign of Charles II., placed upon a similar though more liberal and more satisfactory footing than the old uses (1).

The Statute of Uses was, however, limited in its operation to freeholds, and therefore did not affect uses of copyholds or chattels real.

In 1876 the question came before the House of Lords whether the Statute of Uses applied to peerages. This question was answered in the negative. The Lord Chancellor (Lord Cairns) in delivering judgment, said: "According to the doctrine of these uses, the holder of an estate holding it absolutely as an estate at common law, might have imposed upon his conscience a trust which might be made to shift about, and pass from owner to owner. After these uses had prevailed for some time the Statute of Uses was passed, and by it these uses were turned into actual legal estates. But your Lordships will observe that uses never could have had any application to a peerage, because they were originally trusts, and there could be no trust of a peerage which was a personal possession, and could not be held by one person on trust for another" (2).

Of the rules applicable to equitable estates it must suffice here, when speaking of the subject of property, to say, that speaking generally, they are comprised in the comprehensive rule expressed by the maxim, "equity follows the law," that is, the rules applicable to equitable estates are in general similar to

(1) Haynes, Outlines of Equity,

p. 49. 5th edition.

(2) Per Cairns, L.C., In re The

Buckhurst Peerage, L. R. 2 App. Cas.

27.

Statute

does not apply to copyholds or lease

holds.

Peerages.

those by which legal estates are governed (post, p. 513). It must, however, be borne in mind that for the creation or transfer inter vivos of an equitable estate in land, the formal conveyances applicable to legal estates are not requisite, though, by the Statute of Frauds (29 Car. 2, c. 3), the creation of a trust of land must be evidenced by writing signed by the party creating the same; and an assignment of an equitable interest in property of any kind must also be evidenced by writing signed by the assignor.

Prior to the Judicature Act, the Court of Chancery alone had jurisdiction in regard to equitable estates. But that Act provided (post, p. 351, et seq.) that equitable estates and rights shall be recognised and taken notice of by all Courts, and that in case of conflict between common law and equity, the latter shall prevail (1).

The Court of Appeal, however, lately held, that though since the Judicature Act the Court administers and deals with the rights of parties, having regard both to law and equity, the legal estate and the equitable estate are still separate and distinct (2). "It has been argued before us," said one of the judges of the Court of Appeal, "that the difference between legal and equitable interests has been swept away by the Judicature Acts. But it was not intended by the legislature, and it has not been said, that legal and equitable rights should be treated as identical, but that the Courts should administer both legal and equitable principles. I think that the clause enacting that the rules of equity shall prevail shows that it was not intended to sweep away altogether the principles of the common law."

"It was contended," added another of the Lord Justices, "that the effect of the provisions of the Judicature Acts, 1873 and 1875, was to abolish the distinction between law and equity. Certainly that is not the effect of those statutes, otherwise they would abolish the distinction between trustee and cestui que trust."

It was an old established principle of the common law that a man could not convey property, whether real or personal, to himself, and on a similar principle a man might not grant nor give his tenements to his wife during the coverture, for that his wife and he be but one person in the law. Both these rules were evaded, so far as real estate was concerned, by conveyances under the Statute of Uses. The Conveyancing Act, 1881, s. 50,

(1) 36 & 37 Vict. c. 66, ss. 24, 25. (2) Clements v. Matthews, 11 Q. B. Div. 808, 814; Joseph v. Lyons, 15 Q. B. Div. 280, 286, 287, where

the legal estate and interest, without notice was allowed to prevail over a prior equitable interest.

now provides with regard to conveyances made after the commencement of the Act, Jan. 1, 1882, that freehold land or a thing in action may be conveyed by a person to himself jointly with another person, by the like means by which it might be conveyed by him to another person; and may, in like manner, be conveyed by a husband to his wife, and by a wife to her husband alone or jointly with another person (1).

(1) 44 & 45 Vict. c. 41, s. 50; see note thereon in Clerke and Brett's Conveyancing Acts, &c., 3rd ed. p. 191.

Definition.

Creation of estates for life.

CHAPTER IV.

ESTATES FOR LIFE.

An estate for life is an estate held or capable of being held during the subsistence of a life or lives, and not limited in duration to a fixed period. The life may be either that of the tenant or that of another person. An estate to a person for his own life or for the life of another is an estate of freehold, and is in the eyes of the law a larger estate than any estate for years. A grant to A. for 999 years, if he shall so long live, or if B. shall so long live, is only a chattel interest, and less than an estate of freehold, because a fixed period is limited when the estate must determine.

An estate for a person's own life may be either absolute, as upon a conveyance or devise to A. for life, or it may be made determinable on a contingency, and its duration may be limited to some uncertain period included in the life; as example, if ar estate be given to a woman "as long as she remain single," or "during widowhood" (1).

An estate for the life of another, or for an uncertain period included in another life, as when land is granted to A. to hold during the life of B., or during B.'s widowhood, is called distinctively an estate pur autre vie. The person during whose life the estate is held is called the cestui que vie. Where an estate pur autre vie is granted to A. and his heirs, or to A. and the heirs of his body, on his death his "heirs," or "heirs of his body," as the case may be, are said to succeed to the estate pur autre vie as "special occupants," that is, persons specially nominated to the grant of the estate, and not as persons taking by descent from the grantee. An estate pur autre vie limited to a person and the heirs of his body is called a quasi entail (post, p. 41 (2)). Estates for life are either created by some legal instrument, e.g. a deed or will, in which case they are sometimes called, "conventional or contractual," or arise by mere operation of law. The estates for life which arise by operation of law, are:(1) The Widow's Dower estate (post, p. 30).

(1) Goodeve's Real Property, 2nd ed. p. 40; Tudor's Leading Cases in Real Property, p. 49, 3rd edition.

(2) See, us to the devolution of an estate pur autre vie after the death of the tenant for life, post, p. 31.