48 CHAPTER III. OF THE DESIGN AND EFFECTS OF THE STATUTE OF USES. THE STATUTE THE inroads which uses had made, and were still making upon the ancient law of tenure, at length induced the legislature to pass the famous STATUTE OF USES (a), from which we date a new era in the history of conveyancing. That statute, after setting forth a long catalogue of "imaginations," "inventions," and "practices," whereby "many inconveniences had happened, and daily did increase, among the king's subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of the realm," enacted, "for the extirpating and extinguishment of all such subtle practised abuses," that, "where any person or persons stood, or were seised, or thereafter should be seised, of any hereditaments to the use of any other person or persons, such person and persons that had, or thereafter should have, such use, or any use in remainder or reverter, should thenceforth be adjudged in lawful seisin, estate, and possession of and in the same hereditaments to all intents, of and in such like estates as they had, or should have, in use, of and in the same, and that the estate, title, right, and possession that was in such person or persons that were, or thereafter should be seised to the use of any such (a) 27 Hen. 8, c. 10. person or persons, be adjudged to be in him or them that had or thereafter should have such use, after such quality, manner, form, and condition as they had before in or to the use" (b). The substance and effect of this enactment was, that where any person should be seised of land to the use of any other person, the person entitled to the use in equity should be deemed to have a corresponding estate or interest in the land at law. CHAPTER III. design. The apparent object of the statute was, by turning Its probable uses into direct ownerships of the land itself, to prevent the future separation of the beneficial right from the legal estate, and thus to restore, in some degree, the singleness and simplicity of the common law. Lord Coke, however, says (c), with his characteristic quaintness, that "the makers of the statute at last resolved, that uses were so subtle and perverse, that they could by no policy or provision be governed or reformed; and therefore, as a skilful gardener will not cut away the leaves of the weeds, but extirpate them by the roots; and as a wise householder will not cover or stir up the fire which is secretly kindled in his house, but utterly put it out; so the makers of the said statute did not intend to provide a remedy and reformation by the continuance or preservation, but by the extinction and extirpation of uses; and because uses were so subtle and ungovernable, as hath been said, they have, with an indissoluble knot, coupled and married them to the land, which, of all the elements, is the most ponderous and immoveable." its presumable object, but pro Whether the statute-makers, blind to the folly of at- It fell short of tempting to reimpose upon the people, who had begun to taste of freedom in the enjoyment and disposal of their duced import ant changes. CHAPTER III. possessions, the feudal fetters of the ancient law, really aimed, without mitigating the rigour of that law, at the utter annihilation of uses, or whether they sought only to bring all interests in land under the cognizance of the courts of law, without disturbing the new modes and forms of disposition which uses had introduced, their elaborate piece of legislation must be pronounced a signal failure. The statute, however, though it miscarried in regard to both these objects, was not inactive, but produced important and lasting results, which, as they are of the very essence of the modern system, demand attentive consideration. Of those coming changes, the legislature (which, as the late learned Chief Justice of the King's Bench happily observed, is not inops consilii, but rather magnas inter opes inops), had probably no pre It did not destroy equitable interests, but supplied new ing legal es sentiment. The statute did not operate to prevent the future existence of equitable rights, as distinct from the legal ownmodes of creat- ership, while it did operate to communicate to the legal ownership all the flexible and most of the popular qualities of the use; contributing, therefore, both by its negative and positive effect, to confirm and extend the longcoveted immunity from feudal strictness. tates. Equitable interests were preserved 1. By the exclusion of lease As the retention of equitable interests determined the character of the future system, let us first advert to the means by which they were preserved. 1. As to leaseholds for years, they were adjudged to holds for years be excluded by the letter of the statute. If land was from the sta tute. vested in A. for a term of years, to the use of B., the statute was held not to transfer the legal interest in the term to B., because, as it should seem, the statute, when it speaks of persons seised to the use of others, must, according to correct technical phraseology, be understood to speak of a freeholder who is seised, and not of a lease use. holder who is merely possessed (d); yet the statute is CHAPTER III. commonly described as a statute "made for transfering uses into possession," or for uniting the possession to the Another ground assigned for the non-application of the statute to leaseholds for years, is, that, before the statute, equity would not have enforced a use in respect of a term of years (e), inasmuch as chattel interests were anciently held in small estimation (f); and that, consequently, in regard to this species of property, there were no uses to be transferred into possession. As the statute, for reasons which have now lost their force (g), was confined in construction to conveyances by freehold tenants, the term of years remained in A. at law, and B.'s use underwent no change, except a change of name, for it was now called, in conformity with the style adopted in regard to freehold equitable interests, of which we are about to speak, a trust. 2. As to freeholds, uses of a certain description were excluded by their intrinsic nature. The only uses on which the statute could operate, were passive uses, and resulting uses (h) (which, except so far as regards the manner of their creation, may be classed together)— uses not imposing any duty to be discharged by the legal owner, nor indicating any purpose to be answered by the separation of the legal ownership from the beneficial enjoyment. Such equitable interests the legislature unquestionably meant to extirpate. But in regard to active uses and constructive uses (i), the statute was necessarily inoperative. When the use involved a direc 42. (d) Gilb. Us. 79; Bac. Us. (e) Sand. Us. 4th ed. 34. (f) 4 Bligh's Parl. Rep. O. S. 106. (g) Sugd. Gilb. Us. 80, n. 7. (i) Ante, ib. 2. By its inapplicability to active uses; CHAPTER III. tion to sell and divide the money, or to pay debts, or to convey to a child when adult, or to reconvey on satisfaction of a mortgage, which might never be satisfied, the very nature of the use seemed to preclude the possibility of its being converted, by force of the statute, into a legal right to the land. For the convenience of carrying such destinations into effect, the legal estate still resided in the trustee, and courts of equity continued to administer the trust :-though it may be matter of speculative inquiry (7) whether such was the inevitable result, even in regard to uses of that class-whether legal powers over the land exactly commensurate with the scope of the office to be discharged, might not have been substituted for the legal estate, or why law and equity might not have been so far reconciled as to confine the legal dominion of the trustee (m), which often survives at law the purpose of its creation (rendering a reconveyance necessary), within the limits of that purpose. 3. By the construction of the spect to a use upon a use. 3. But the judicature established a yet more extensive judges, with re- and important exception, by the rigid construction put, in one respect, upon the language of the party declaring the use. The statute aimed at rendering uses innoxious, by turning the use into a legal estate, the confidence in the person into a direct right to the land. It annexed to the use the actual possession of the subject; not pro'hibiting or restricting the creation of uses, but only operating upon the use when created. Now, the judges thought fit to determine that if A., the legal owner of the land, was directed to hold, or contracted to hold, the land to the use of B., who at the same time was directed to hold, or contracted to hold, it to the use of C., statute would carry the land to B. at law, but carry it no (1) Post, Illust. III. ss. 2, 3. (m) See Doe v. Edlin, 4 Adolph. & Ell. 582. the |