purely arbitrary, and sometimes an imitation too curious, has produced (n). CHAPTER III. tem more dis before the sta Under this new system of trusts, the equitable interest-formed a sysobtained an exemption from the control of the common- tinct than uses law judge yet more complete than it ever enjoyed while tute. existing in the shape of the ancient use, which, by the operation of several statutes (o) directed against uses, was brought within his occasional cognizance. Doctrine of version, by di equitable con recting land to money, or mo ney into land; We may notice in this place, as connected with the growth of equity, an important doctrine, which flowed almost of course from the admission of trusts. The law be turned into had distinguished between real and personal estate, and declared that each should possess certain qualities, and devolve in a certain course, peculiar to itself and unalterable by the party (p). But equity in this, as in other instances, provided the means of evading the law. It enabled the owner virtually to transmute, at his pleasure, land into money, and money into land, by a constructive conversion. Thus, if land was directed to be sold and the produce paid to A., or money was directed to be invested in the purchase of land to be conveyed to A., the land or the money, though really unconverted, assumed, in contemplation of equity, that character which, by the terms of the instrument, it was destined to assume in fact (q). The beneficial interest in the land to be sold (n) The exemption of the equitable fee from dower, (ante, 91), may be adduced as an instance of arbitrary departure; and the constructive revocation of devises by a new modification of the equitable seisin, (vide post, Chap. v.; 1 Vict. c. 26; Vol. 2, n. 129), as an instance in which equity has entangled itself by attempting "to reason from analogies where the relation is fanciful rather than real." Copleston's Disc. III., n. (0) Ante, 47, n. (t). So, by the Statute of Frauds, 29 Car. 2, c. 3, s. 10, trust estates were made liable to execution upon a judgment; and trusts of the fee were made assets by descent. (p) See Bac. Ab. "Estate for Life," s. 3. (q) Fletcher v. Ashburner, 1 Bro. C. C. 497; and see 5 Ves. 396. CHAPTER III. became the personal estate of A.; the beneficial interest in the money to be invested became the real estate of A.; and while the legal subject itself continued to be disposable and transmissible according to its intrinsic quality, the usufruct followed its imputed nature. When a fund, whether real or personal, was thus impressed with properties not its own, it retained that equitable impression till some act was done by the absolute beneficial owner to restore it to the natural condition. If, before the actual conversion, A., being the only object to be benefited by the conversion, and being free from disability, elected (without stopping to inquire what dealings would amount to an election) to take the property as he found it, then it returned as readily to its primary character. This doctrine flowed from the general principle of equity, that whatever ought to be done, in the due course of executing a trust or fulfilling an obligation, should be considered, with reference to the rights which its execution or fulfilment would confer, as actually done. -its practical influence and importance. If we view the equitable right to property as the substance, and the legal estate as merely the shadow, (for such, in point of beneficial enjoyment, is the relation which they bear to each other), it will be obvious, that the doctrine in question was calculated to produce extensive and important effects, both on the relative amount of real and personal property, and on the relative importance of the two great branches of the judicature. Either species of property might, under this doctrine, be taken, with ease and without limit, to augment the other, and thus be, not only subjected to laws entirely foreign to its inherent nature, but be withdrawn from the ordinary jurisdiction. As this species of conversion was purely ideal, it sufficed that what was directed to be done should be legally possible; for the mere improbability, or even the moral impossibility, of actually executing the direction in specie, (as in the instance of a trust to invest a large sum in the purchase of land in a district which either afforded no chance of obtaining a single acre, or of which the whole value was far exceeded by the amount of the fund), did not prevent the constructive transmutation. If the direction could not be executed in terms, it might be executed cy pres, or, in other words, with the nearest practicable approach to the intention. With respect to personal estate directed to be invested in land, the transmutation was so complete, that the husband of a woman destined to take the immediate inheritance of the land to be purchased, was entitled in equity to be quasi-tenant by the curtesy (r) of the invested fund, (and it is conceived, that, in the converse case, of the husband's being the taker, dower would now (s) attach), and a money fund, so impressed with the quality of realty, was also susceptible of an entail (t), and was not devisable without the peculiar ceremonies prescribed (u), till lately (x), for the devise of real estate. By this process, too, it should seem that money in England might be rendered in effect a portion of the immoveable property of any other country in which the investment might lawfully be made; so that, for instance, by means of a trust to purchase land in Scotland, the fund might be settled as a provision for personal maintenance more securely (y), or be entailed more strictly (≈), than the law of England would permit. Trusts for conversion, attended with such convenient results, could not but be numerous and extensive among a commercial people, seeking either to distribute (r) Sweetapple v. Bindon, 2 Vern. 536, (c); Lingen v. Souray, 1 P. Wms. 172. (8) 3 & 4 Will. 4, c. 105, s. 2. (t) See 3 & 4 Will 4. c. 74, s. 71. Post, Chap. v. (u) 29 Car. 2, c. 3, s. 5. (By real estate must be understood (x) See 1 Vict. c. 26. Post, (y) Ersk. Inst. 7, 9. (2) Ib. But see 6 & 7 Will. 4, c. 42. CHAPTER III. pound of hand in case, invalis contract of sale. CHAPTER III. 3. Trusts in re- -might be cre ferred without formality. of pars performance. West Hartlepool Hastom lon OF THE DESIGN AND EFFECTS 4: 241 or to perpetuate their wealth; and if we superadd them to the other business of the Court of Chancery, we shall the more readily understand how the jurisdiction of that Court, in matters of property, swelled at length to an importance which rendered its decrees the real landmarks, and reduced the ancient tribunals to comparative insignificance. Thirdly, as to the creation and transfer of rights to the equitable ownership.-To the express creation of a trust, or the transfer from man to man of the benefit of ated and trans- an existing trust, nothing more was necessary than a manifestation of the intention, which might be indicated by any form of words. The Statute of Frauds (a) required writing, and in certain cases, signature (b); but no statute, rule, or principle, had prescribed any other observance; and the very idea of a trust, which had nothing real or tangible in its nature, seemed to repel the Of contracts for notion of a conveyance. A contract for the sale of a freesale and specific hold interest in land, though inoperative to confer a title performance. to the land at law, either from not having the requisites (a) 29 Car. 2, c. 3. Trusts arising by construction, or by operation of law, upon a conveyance of the land, are saved by s. 8. And the equitable doctrine, as to the part performance of verbal contracts, has made serious inroads upon the provisions of the 7th section of this statute. See 1 (6) "Even under the statute treated as incapable of operating to pass the land at law, from the circumstance only of its not being a deed indented and inrolled, as required by the statute of inrolments; but even if those requisites were observed, a contract could rarely so operate, for, as it ordinarily contemplates a future conveyance, to be preceded by an investigation of the title, its executory nature would (as in the case of an agreement to execute a lease) negative that operation, no less than it prevents the vendor from standing towards the purchaser in the simple relation of a bare trustee to his cestui que trust. In a court of law, which could not recognise an alienation until perfected by an actual conveyance, the only remedy upon such a contract was an action to recover damages for its non-performance, but equity decreed what is called a specific performance, obliging the contracting parties to do in specie the very thing agreed to be done. Suits for the specific performance of contracts, which necessarily involved the sifting of titles, the taking of accounts, and various other matters fruitful of nice and difficult questions of law and fact, began to draw largely upon the time, learning, and acumen of the equity judge. In truth, all instruments which affected only the equitable or beneficial interest in land-from the equitable right to enjoy the land for ever, down to the equitable right to enjoy it for a year-were in the nature of contracts, or agreements, to be specifically performed in equity. Although, the statute of frauds required that agreements concerning land, (which, before that statute, were valid without writing), should be reduced into writing, and signed by the party to be bound, or by the authorized agent of such party (d); yet such agreements might CHAPTER III. |