But legal escreated by way tates, though or until the birth of a child of B. But the statute, by CHAPTER III. joining the land to the use, supplied a ready method of effecting, even at law, these and other irregular destinations. A use being moulded to the form required, the statute gave it legal efficacy. Hence, not only were the ancient proprietary rights unceremoniously created, but novel modes were introduced, and the very seisin of the land slipped from the hands of the freeholder before the regular determination of his estate, without any form of livery or other intimation of the change. So that the legislature, in attempting to restore the fruits of seigniory to the lord, subdued, in a great measure, the stubborn qualities of the legal dominion, bending it to the convenience, and even caprice, of the proprietor; and thus the statute of uses, although professedly made for the advantage of the crown, conferred a signal boon upon the subject. Still, however, the severe maxims of tenure oppressed the ownership at law, whether raised by the old methods, or by the novel operation of the statute. A legal estate for life, though created by way of use, was liable to forfeiture; and whenever a use for life, in tail, or in fee, was limited to take effect in remainder, expectant upon a prior use for life or in tail, the law required that the limitation in remainder should come into operation before or in the instant of the determination of the prior use. It followed that, when (for example) land was settled on marriage to the use of A., the husband, for life, and after his death, to the use of the children of the marriage, the provision for the children was liable to be defeated by the forfeiture of A.'s life estate (f), which might happen either by design or through mere inadvertence. So, if the use was limited to A. in fee, the legal ownership which he acquired under the statute was subject to (ƒ) Ante, 18, 27. of use, were subjected to the rules of tenure. CHAPTER III. dower (g) and to escheat (h). In short, the possession Modes of conveyance after which the use drew after it, was generally, though not invariably (i) attended with the incidents, and amenable to the rules, of the common law. The force of the statute was exerted chiefly in multiplying and enlarging the means of conferring the legal dominion. We now proceed to consider what changes the statute the statute of produced in the modes of conveyance. uses. BARGAINS AND SALES, BARGAINS AND SALES, which, before the statute, were substantial dispositions of the equitable ownership, raising a use in favour of the purchaser on the ground of a valuable consideration paid by him, were now resorted to merely as instruments for raising such a use as would attract the statute; but to the raising of which (since uses had passed into mere forms of legal limitation) neither any beneficial interest in the bargainor, nor any consideration esteemed really valuable and actually moving from the bargainee, was requisite. The courts of law, as well in this instance, as in the instance of a use upon a use, rejected all equitable ingredients, and, consistently with their general view of the statute, reduced the transaction to a mere mode or form of conveyance. When, therefore, A. the legal owner, holding either in his own right, or as a mere trustee for B., bargained and sold to C. for five shillings expressed to be paid by C. to A. (j), (the semblance of value and the allegation of (g) 3 & 4 Will. 4, c. 105. Post, Chap. v. (h) 4 & 5 Will. 4, c. 23. Post, Chap. v. (i) The doctrine of remitter is an exception, see Co. Litt. 348. b.; Doe d. Cooper v. Finch, 1 Nev. & Mann. 172, n. (86), and cases there referred to; S. C. 4 Barn. & Adolph. 283. (j) It is conceived that a bargain and sale by A. to B., in consideration of money or money's worth paid by C. to D., would be good. And see 3 Nev. & Mann. 110, n. payment being still requisite), such a use as satisfied the statute, or at least its expounders, arose in favour of C., who was immediately invested with the legal estate. The practice of expressing (for the money was never in fact paid) a nominal consideration of five or ten shillings in deeds was at length extended, from ignorance or disregard of its origin and peculiar use, to every kind of transfer of every species of property. CHAPTER III. STAND SEISED; As to COVENANTs to stand seiseD, the same considera- COVENANTS TO tion of blood or marriage, which was necessary to raise the use before the statute, was necessary still; but no beneficial interest in the covenantor was required, for if he had the legal ownership, though merely as a trustee, the use would spring up, and the possession followed. assurances. In short, bargains and sales, and covenants to stand seised, which, before the statute, were real contracts passing the beneficial interest, were now employed, without any regard to that interest, as technical vehicles for conveying the land at law. The statute had the effect of adding the forms of such contracts to the list of legal Of the practical importance of the conveyance by bargain and sale we shall presently speak. Covenants to stand seised fell into neglect; for, as no use could arise upon such a covenant in favour of strangers, (i. e. persons not within the marriage consideration, nor of the blood of the covenantor), it was incapable of adaptation to the objects of a modern settlement, which required the limitation of legal interests to trustees for various purposes, as the raising of jointures and portions, and also the insertion of powers of appointing uses to lessees, purchasers, and others. --both became legal conveyances. tween such con It has already been observed, that, before the statute, Distinction beuses were created either by changing the possession, as veyances as when A. conveyed the land to B., to the use of C.; or, operate with, and such as operate without, transmuta sion. CHAPTER III. Without changing the possession, as when A. bargained and sold, or covenanted to stand seised of the land to tion of posses the use of C. And, after the statute, legal conveyances were divided into those which took effect by way of transmutation of possession, and those which owed their operation exclusively to the doctrine of uses. Bargains and sales, and covenants to stand seised, which did not affect to disturb the possession, and which, therefore, before the statute, had no operation at law, now conveyed the land itself by force of the statute. To illustrate the distinction between the two classes of assurances-upon a bargain and sale, made after the statute, by A. to B., nothing passed under the bargain and sale but the use;it was the statute which transferred to B. the possession of the land. But when A. conveyed the land by feoffment to C., the conveyance transferred the possession to C., and if, on such possession, (or, technically speaking, seisin) a use was declared in favour of B., then the possession passed to him, in the same instant, under the STATUTE OF -confined to bargains and sales of freehold interests; -evaded by statute. The legislature, observing that a mere contract for sale, value being given, raised a use, and, with the help of the statute, changed the possession, and, consequently, apprehending that land would be conveyed from man to man without form or solemnity, passed another statute, the STATUTE OF INROLMENTS (g), which denied effect at law to such contracts in regard to freehold interests, unless made by deed (h) indented, and inrolled within six [lunar] months from the date. A contract for the sale of land, so perfected, was called a BARGAIN AND SALE INROLLED. Conveyances by way of bargain and sale being thus (g) 27 Hen. 8, c. 16. (h) i. e. a writing under seal. CHAPTER III. LEASE AND RE LEASE. clogged with the ceremony of inrolment, and being on other accounts unfit for general adoption, the lawyers the modern again taxed their ingenuity, and again outwitted the collective wisdom of the legislature. They quickly perceived a loophole which the statute of inrolments had left open, and through which almost all the land in the kingdom has since passed in secrecy and silence. That statute did not extend to a contract for the sale of a term of years, either already existing or to be created. If, therefore, A. wished to convey the inheritance of the land to B., he first contracted for a nominal consideration, as five shillings, to sell it to B. for a year. This contract entitled B. to the use for a year, which use the statute of uses immediately turned into a legal estate in the land, so that B. became, without entry, tenant in possession to A., whose remaining interest in the land. (technically the reversion) might immediately, upon the principles of the ancient common law (i), be relinquished (technically released) to B. by another instrument. The first instrument was called a Bargain and Sale for a Year, or a Lease for a Year; the second, a Release:—they formed together the conveyance since in general use under the name of a LEASE AND RELEASE. Though, commonly, the lease and release were distinct instruments, yet, if incorporated and executed as one conveyance or assurance, in point of form, the law would treat them as several and consecutive, in point of effect. By a bargain and sale, singly, an estate to endure for one year, or for one thousand years, and by the joint result of a bargain and sale and a release of the reversion, (i. e. a lease and release), an estate of freehold or inheritance might be conveyed, and completely vested at law (i) Ante, 24. Practical use of the bargain and sale, and of the lease and re lease. |