here, the use of the fee limited to the appointee, son, or brother, of B., is only to arise in event or after an interval of time, and instead of being mounted upon, takes precedence of the use to B. The contingent or future use cannot obstruct the present vesting of the estate in B., because that use has no substantial existence till the contingency happens or the period arrives; the vested estate of B. does not prevent the execution by the statute of the contingent or future use, because the absolute vesting of his estate is postponed in favour of such use. In the one case, there is a use upon a use; in the other, a seisin subject to a use. It matters not whether the use of the fee, in default of appointment, be prevented by construction of law, as in the first example, or by express declaration, as in the second example, from resulting, or whether it be permitted to result; nor whether the contingent or future use be, in point of form, limited, first or last :-in either case it engrafts itself, as the primary use, on the seisin of B. It would, indeed, be singular, if, on the one hand, a momentary seisin at the common law in B. were clearly adequate to give effect to the contingent or future use, but a continuing seisin at the common law were an objection; an objection, too, advanced by those who resort to the fiction of a scintilla juris (b), in order to satisfy the supposed necessity for a seisin at the instant in which the use arises; nor would it be less singular if, on the other hand, the statute were to be considered as transferring the seisin of B. from himself to himself, and this hypothesis were to be held essential to the execution of the contingent or future use. It may be added, that, even if B. were to appoint the use of the fee to himself, he would still continue in at the common law, for the appointment would, in effect, be a declaration that his seisin shall cease to serve any use, and would place him in the position which he holds in the second example.

(b) Ante, 61.

Limitations in

RESULTING USES.

2. Observations on the Doctrine of Resulting Uses, with reference, particularly, to the possibility of the Use resulting for a particular Estate.

THE limitations in a deed operating under the Statute of conveyances to Uses must, in their creation, be either

uses must be

-vested, or

-not vested; or

-partly vested, and partly not vested.

1. Vested, conferring, therefore, legal estates, (as, where the land is limited to A. for life, remainder to B. for life or in tail, remainder to C. in fee, or to A. for life, remainder to B. for life or in tail), in which case the whole use of the fee-simple, (in the first example,) or such portion of the use as the limita tions embrace, (in the second example), is immediately drawn out of the grantor, covenantor, &c., and executed in the cestui que use by the statute, and the undisposed of residue of the use, (in the second example), results to, or remains in, the grantor, &c., as a reversion expectant on the particular estates created by the limitations;-or,

2. Not vested, and not, therefore, conferring legal estates, (as to the heirs of the body of B., a person now living, or to A. for life, if he shall return from Rome, remainder to the heirs of the body of B., a person now living, or from and after Christmas-day next to A. in fee), in which case the whole use of the fee-simple results to, or remains in, the grantor, &c., subject to be drawn out of him, to the extent of the estates to be conferred by the limitations, on their becoming vested, either as remainders, if eventually capable of effect as such, (for, in the second example, the limitation to the heirs of the body of B. would, if A. should return from Rome in B.'s lifetime, be good as a contingent remainder), or if not so capable, and if confined within the bounds prescribed by the rule against perpetuities, then as springing or future uses;—or,

3. Partly vested, and partly not vested, (as, to A. for life, remainder to the heirs of the body of B., a person now living, remainder to C. in fee; or to A. for life, and, at the end of one year or one day after his death, to the heirs of the body of B., a person now living), in which case such portion of the use as

the vested limitations embrace, is immediately drawn out of the grantor &c., and executed in the cestuis que use by the statute; and the undisposed of residue of the use results to, or remains in, the grantor, &c., as a reversion expectant on the particular estates created by such vested limitations, subject to be drawn out of him, to the extent of the estates to be conferred by the remaining limitations, on their becoming vested, either as remainders, or as springing or future uses.

The foregoing propositions, of course, assume that, in deeds taking effect by transmutation of possession, there is nothing to rebut the supposed resulting use, and fix it in the feoffees, releasees, &c.; and it should be observed that the legal use will not result to the grantor, releasor, &c., where it would defeat the intent of the conveyance by merging a particular estate expressly limited to the grantor, releasor, &c.

Assuming these positions to be accurate, it would seem to flow from them, as a necessary consequence, that by no possibility can a particular estate of freehold, in any case, result to, or remain in, the grantor, covenantor, &c. ;-for,

either the

In every case, whole use results, or no use

results, or the use of the ultimate fee re

1. Where no limitation is vested, less than the whole use of sults. the fee-simple cannot result or remain ;—and,

2. Where all or some of the limitations are vested, and absorb the whole use of the fee-simple, nothing can result or remain ;-and,

3. Where all or some of the limitations are vested, but do not absorb the whole use of the fee-simple, the residue of the use (being the ultimate remnant of the ancient use) will result or remain, as a reversion expectant on such portion of the use as passes in the particular vested estates.

On principle (c), it is conceived that the grantor, &c., cannot be in of a particular estate of freehold, as part of his old use, whereof he hath not disposed, because if he make a partial disposition of the use, it must be in some particular vested estate or estates; and, such particular estate or estates being deducted, the residue will be the use of the ulterior fee-simple.

(c) But see Pibus v. Mitford, 1 Vent. 372; Fearn, C. R. 42,

Extent of the

be afforded.

III.

Law and Equity.

1. Conveyance of Legal Estates.

JUSTICE and convenience seem to require, that, in every case relief proper to where property is vested in any person as a trustee, either expressly or constructively, equity should be enabled to effect a transfer; and to effect it by a summary process, unless the court should see enough of difficulty in the case to call for a solemn investigation. We shall presently see, however, that the legis lature has fallen short of conferring this extent of discretionary power, and has so embarrassed, by distinctions, the power actually conferred as to have rendered it peculiarly fruitful of litigation.

The act of 1 Will. 4, c. 60, extends expressly to constructive trusts, which were not within the former acts. It provides particularly for the death of a vendor before the performance of the contract, by declaring that the heir shall be deemed a trustee within the act (s. 16), and (if the vendor shall have devised the legal estate in settlement) by enabling the devisee for life or for any other limited interest, to make, in certain cases, an effectual conveyance (s. 17), (a provision which might have been advantageously extended); and it afterwards provides generally for cases of constructive and implied trusts, but exclusive of cases upon partition, cases arising out of the doctrine of election in equity, and the case of a vendor, (except so far as the latter case is before expressly provided for), to which cases "this act shall not extend" (s. 18). But in order that a conveyance may be obtained under this act, from the heir or particular devisee of a vendor, there must be a decree for specific performance of the contract (d), the costs of the suit coming out of the purchasemoney (e). It deserves consideration, whether the Court might not be safely and beneficially intrusted with a discretionary

(d) Ss. 16, 17, et vide post, 472. (e) Prytharch v. Havard, 6 Sim. 9.

It often hap

power to proceed upon petition in these cases. pens, that the evidence of the contract is beyond dispute; that the purchaser has accepted the title, and has paid, or is ready to pay, his money; that nothing, in short, remains to be done, but to convey the legal estate, which the personal representative, or any third person, were it vested in him, would at once convey upon his own responsibility; yet, to determine what is not disputed, there must be the formality of a suit, which, in a small transaction, may dip deeply into the purchase-money. In such a suit, the decree would be almost of course, and be absolute against an infant heir (f). If a discretionary power were given, the Court would not act on petition, except in very clear cases, but (as the act provides in regard to old trusts, &c. (g)) direct a bill to be filed; and the worst result would be to substitute the possible injustice of an inadvertent order, for the certain injustice of a slow and costly decree. The act is fettered by a degree of jealousy, perhaps excessive, of the summary interposition of the Court. There is no very apparent reason for the exclusion, already noticed, of certain cases of constructive trusts; since, where an adverse interest exists or is set up, it is made essential (h) that the right to the conveyance shall be established in a suit regularly instituted. The result, in regard to the excepted cases, has probably not been exactly what was anticipated. In the case of a partition, for example, where on partition, infants were concerned, either as plaintiffs or defendants, they were allowed six months after attaining majority to shew cause against the decree, and in the mean time the conveyances were respited (i). But the 1 Will. 4, c. 47, s. 10, enacts, that in no suit against an infant shall the parol demur, and it has lately been held by the Vice-Chancellor, (with the concurrence of the Lord Chancellor and the Master of the Rolls), that, as the plain meaning of the statute is, that the parol shall not (i. e. "in a suit for payment of debts, or any other purpose") demur, it is a necessary consequence that the six months shall not be given on a decree by reason of a defendant (or plaintiff) being

(f) Vide post, 468, n. (j). (g) S. 12.

(h) S. 16, et vide post, 472.

(i) Attorney-General v. Hamilton,

1 Madd. 214.