CHAPTER III. interests, neither recognised by the common law, nor reached by the statute). Where land was conveyed by feoffment or other common law assurance to A., to the use of B., a purchaser, A. had the common law estate, and B. had the proper or beneficial use, that is, the very use contemplated by the framers of the statute, Where land was so conveyed to A., to the use of B., to the use of C., a purchaser, A. had the common law estate, B. had the improper or nominal use, not contemplated by the framers of the statute, but generated by the verbal criticism of its expounders, and, finally, C. had the trust or equitable right.

On limiting a use, not beneficial, a trust

arose.

Uses lost their equitable character, and assumed a legal

character.

The necessary consequence of giving any effect to the limitation of a use not beneficial, was to create a trust; for the taker of such a use, having no right to hold for his own benefit, must of course have held as a trustee for some other person.

The use, whether beneficial or not, ceased to rest on personal confidence, and became, under the influence of the statute, a legal right, on which, according to its "quality, manner, form, and condition," the possession attended. Consequently, where land was conveyed to A., to uses, it was no longer possible that any act done. by him, as, for instance, his conveyance to a purchaser without notice, could defeat the uses, because the conveyance to A. was no sooner completed than the uses were converted into permanent legal rights, differing from interests of common law creation, not in the point of direct relationship to the soil, but only in the mode and form of their original limitation. The effect of the statute upon beneficial uses, and upon uses not beneficial, was the same: all uses were regarded by courts of law with an equal eye. The legal judge never inquired whether the person to whom the use was limited had any beneficial right or not-an inquiry referred to

another jurisdiction.

Hence, statute-uses proved no

CHAPTER III.

Immaterial, at object of the

law, whether the

use was design.

ficially or not.

thing in regard to the beneficial ownership, but were merely the moulds by means of which the legal ownership might be cast with facility into almost any given ed to take beneform. Although fashioned after uses before the statute, they were destitute of the equitable principle, as their prototypes could not be otherwise than destitute of the legal possession. If the person taking the use was also entitled to the beneficial enjoyment, he became legal owner for his own benefit; if not, he became legal owner in trust for the person so entitled. Since the beneficial interest was no longer of the essence of a use, it followed, that uses might be created as well by a person who had the legal estate without the beneficial interest, as by a person in whom these were united. So that when a mere trustee of the legal estate conveyed, without the consent of the beneficial owner, to the use of a stranger, such use, though unsupported by any consideration, and even limited to a person affected with full notice of the trust, conferred the legal estate by force of the statute; yet it is clear that, under similar circumstances, the use could not have been sustained as a use before the statute. On the one hand, the statute executed uses which the Chancery would not have executed as being against conscience; on the other, it refused to execute uses which the Chancery would have executed as being obligatory on conscience.

plicability of

where no use

arisen in equi

It has been suggested (r), however, that the statute Alleged inap"executes the possession in those persons only, who, the statute, if their rights had continued in their fiduciary state at would have common law, would have been cestui (cetteux) que ty, denied. trust (i. e. beneficial owners) of the land," and consequently that if A., seised in trust for B., bargains and sells to C., who has notice of the trust, no use arises in

(r) Butl. Fearn. Cont. Rem. 9 ed. 327, n. (l).

CHAPTER III. favour of C., on which the statute can operate: but it must be obvious that such a doctrine, however sound in theory, would, if admitted in practice, shake the established system of conveyancing to its centre. Beyond all doubt, equity, so far as the statute was concerned, ceased to be a necessary ingredient in the composition of a use, which might now be limited, with legal effect, in open violation of good faith. The judicial interpreters of the statute, instead of understanding it, when speaking of the seisin of one person to the use of another, as intending a use raised and ascertained agreeably to the doctrines of Chancery, a use, not in sound only, but in substance, fastened upon the term, rather than the thing, and executed the use in persons, who, if their rights had continued in their fiduciary state at common law, would not have taken any beneficial interest. beneficial interest. In short, for all the purposes of the statute, the limitation of a use, (under that or any other denomination), resolved itself into a mere form of expression, employed to indicate in whom, and to what extent, the legal dominion should be lodged, without reference to any of those equitable doctrines, which, before the statute, ascertained the beneficiary, and meted out the benefit.

On what grounds the

doctrine, as to a use upon a

tified.

The justification of that apparently narrow construction which the statute received, if it can be justified, must use, may be jus- be drawn from other sources than the statute itself; from sources existing in the very constitution of our judicial system. After all the speculations concerning the origin of the now leading doctrine of a use upon a use, and all that has been urged against that doctrine, as subversive of the statute, and capricious in itself, the true reason for adopting the nominal and rejecting the real use, may at last be found in apprehensions entertained by that branch of the judicature to which uses were referred by the legislature, lest by expounding and admi

nistering the statute as relative to uses in their fiduciary CHAPTER III. state, courts of common law should be converted into arenas for the discussion of equitable questions, which, from the nature and habits of those courts, could not be there discussed with advantage. The judges may well be supposed to have felt the difficulty of advancing beyond the limitation of a use which primarily exhausted the fee, seeing that the very next step must plunge them into equity. Hence, it would appear that the legislature, if it really contemplated the general subjection of uses to the cognizance of the ordinary tribunals, should have enlarged its scheme, so as to embrace the reconstruction of those tribunals in a form adapted to entertain uses as creatures of conscience; and hence, too, we may learn that any attempt to reduce trusts, as they exist at this day, under legal jurisdiction, stands opposed mainly by the very circumstance from which the Chancery rose and grew, the organic unfitness of the courts of law to deal with matters now forming a large proportion of the most important business of litigants. When the Statute of Uses affected suddenly to cast upon those courts a mass of equitable doctrines, for which they were almost entirely unprepared; to transfer the administration of uses from one side of Westminster Hall to the other; the judges, who could neither wholly reject its authority, nor sincerely adjudicate up to its spirit, applied it, with a dexterous evasion, to the useful and practicable purpose of facilitating the modification and transfer of the legal estate, without otherwise disturbing their ancient jurisdiction-a purpose fully accomplished by admitting the forms, but excluding the substance of equity.

Until some explanation had been given of the general state of the legal ownership under the statute, it would have been premature to examine another doctrine produced by glosses, (whether judicial or extrajudicial is left

Examination of

the doctrine of

a

scintilla juris, and contingent

to feed future

uses.

CHAPTER III. in doubt), upon a very intelligible enactment. This doctrine far exceeds in subtlety that of the use upon the use. We read that a certain doctor having challenged the learned world to dispute with him upon any given topic, an English student proposed the question whether goods taken in withernam are irreplevisable ?" (s)—a question which, of course, confounded the schoolman. His pride of universal knowledge might have been yet more effectually put to shame by propounding the point which we are about to discuss.

Future and contingent uses described;

-how they

took effect be

66

A use might be destined to commence at a future period, as at Christmas next, or to arise upon a dubious event, as in favour of A. on B.'s return from Rome, or in favour of a person to be born or ascertained, as a future child of A. Inasmuch as a use of this nature had no determinate object, the statute could not presently convert it into a legal estate in the land. These uses were called future or contingent. If, before the statute, land had fore the statute; been conveyed to A. in fee, to the use of B. for life, and after B.'s death, to the use of his first son (B. having then no son in existence) for life, or in tail, and, subject to those uses, to the use of C. and his heirs; it is clear that the whole use, or beneficial interest, would have been divided between B. and C., until the birth of a son, when the son would have acquired, and C. would have lost, so much of the use, or beneficial interest, as the limitation to the son was intended to comprise. Now, after the statute, which bade the possession attend upon the use, it might be imagined that the land itself would be similarly affected; that until a son should come into existence, the limitations to B. and C. would absorb the whole legal estate; but that, on the birth of a son, the right to the possession immediately after B.'s death,

-the difficulties concerning them after the statute.

(s) 3 Black. Com. 149, n.