Previously to the reign of Henry VIII., when the Statute of Uses (a) was passed, a simple gift of lands to a person and his heirs, accompanied by livery of seisin, was all that was necessary to convey to that person an estate in fee simple in the lands. The courts of law did not deem any consideration necessary; but if a man voluntarily gave lands to another, and put him in possession of them, they held the gift to be complete and irrevocable; just as a gift of money or goods, made without any consideration, is, and has ever been, quite beyond the power of the giver to retract it, if accompanied by delivery of possession (b). In law, therefore, the person to whom a gift of lands was made, and seisin delivered, was considered thenceforth to be the true owner of the lands. In equity, however, this was not always the case; for the Court of Chancery, administering equity, held that the mere delivery of the possession or seisin by one person to another was not at all conclusive of the right of the feoffee to enjoy the lands of which he was enfeoffed. Equity was unable to take from him the title which he possessed, and could always assert in the courts of law; but equity could and did compel him to make use of that legal title, for the benefit of any other person who might have a more righteous claim to the beneficial enjoyment. Thus if a feoffmenl was made of lands to one person for the benefit of to the use of another, such person was bound in conscience to hold the lands to the use or for the benefit of the other accordingly; so that while the title of the person enfeoffed was good in a court of law, yet he derived no benefit from the gift, for the Court of Chancery obliged him to hold entirely for the use of the other for whose benefit the gift was made. This device was introduced into England about the close of the reign of Edward III. by the foreign ecclesiastics, who contrived by means of it to evade the statutes of mortmain, by which lands were prohibited from being given for religious purposes; for they obtained grants to persons to the use of the religious houses; which grants the clerical chancellors of those days held to be binding (c). In process of time, such feoffments to one person to the use of another became very common; for the Court of Chancery allowed the use of lands to be disposed of in a variety of ways, amongst others by will (d), in which a disposition could not then be made of the lands themselves. Sometimes persons made feoffments of lands to others to the use of themselves the feoffors; and when a person made a feoffment to a stranger, without any consideration being given, and without any declaration being made for whose use the feoffment should be, it was considered in Chancery that it must have been meant by the feoffor to be for his own use(e). So that though the feoffee became in Iaw absolutely seised of the lands, yet in equity he was held to be seised of them to the use of the feoffor. The Court of Chancery paid no regard to that implied consideration, which the law affixed to every deed on account of its solemnity, but looked only to what actually passed between the parties; so that a feoffment accompanied by a deed, if no consideration actually passed, was held to be made to the use of the feoffor, just as a feoffment by mere parol or word of mouth. If however there was any, even the smallest, consideration given by the feoffee (f), such as five shillings, the presumption that the feoffment was for the use of the feoffor was rebutted, and the feoffee was held entitled to his own use.
Anciently a gift with livery of seisin was all that was necessary for a conveyance.
In equity a different rule prevailed.
(a) 27 Hen. VIII. c. 10.
(b) 2 Black. Com. 441.
Feoffment to the use of the feoffor.
(c) 2 Black. Com. 328; 1 Sand. Uses, 16 (15, 5th ed.); 2 Fon-blanqne on Equity, 3.
(d) .Perkins, ss. 496, 528, 537; Wright's Tenures, 174; 1 Sand.
Uses, 65, 68, 69 (64, 67, 68, 5th ed.); 2 Black. Com. 329; ante, p. 62.
(e) Perkins, s. 533; 1 Sand. Uses, 61, 5th ed.; Co. Litt. 271 b.
Transactions of this kind became in time so frequent that most of the lands in the kingdom were conveyed to uses "to the utter subversion of the ancient common laws of this realm" (g). The attention of the legislature was from time to time directed to the public inconvenience to which these uses gave rise; and after several attempts to amend them (h), an act of parliament was at last passed for their abolition. This act is no other than the Statute of Uses (i), a statute which still remains in force, and exerts at the present day a most important influence over the conveyance of real property. By this statute it was enacted, that where any person or persons shall stand seised of any lands or other hereditaments to the use, confidence or trust of any other person or persons, the persons that have any such use, confidence or trust (by which was meant the persons beneficially entitled) shall be deemed in lawful seisin and possession of the same lands and hereditaments for such estates as they have in the use, trust or confidence. This statute was the means of effecting a complete revolution in the system of conveyancing. It is a curious instance of the power of an act of parliament; it is in fact an enactment that what is given to A. shall, under certain circumstances, not be given to A. at all, but to somebody else. For suppose a feoffment be now made to A. and his heirs, and the seisin duly delivered to him; if the feoffment be expressed to be made to him and his heirs to the use of some other person, as 15. and his heirs, A. (who would, before this statute, have had an estate in fee simple at law) now takes no permanent estate, but is made by the statute to be merely a kind of conduit pipe for conveying the estate to B. For B. (who before would have had only a use or trust in equity) shall now, having the use,be deemed in lawful seisin and possession; in other words, B. now takes, not only the beneficial interest, but also the estate in fee simple at law, which is wrested from A. by force of the statute. Again, suppose a feoffment to be now made simply to A. and his heirs without any consideration. We have seen that before the statute the feoffor would in this case have been held in equity to have the use, for want of any consideration to pass it to the feoffee; now, therefore, the feoffor, having the use, shall be deemed in lawful seisin and possession; and consequently, by such a feoffment, although livery of seisin be duly made to A., yet no permanent estate will pass to him; for the moment he obtains the estate he holds it to the use of the feoffor; and the same instant comes the statute, and gives to the feoffor, who has the use, the seisin and possession (k). The feoffor, therefore, instantly gets back all that he gave; and the use is said to result to himself. If however the feoffment be made unto and to the use of A. and his heirs - as, before the statute, A. would have been entitled for his own use, so now he shall be deemed in lawful seisin and possession, and an estate in fee simple will effectually pass to him accordingly. The propriety of inserting, in every feoffment, the words to the use of, as well as to the feoffee, is therefore manifest. It appears also that an estate in fee simple may be effectually conveyed to a person by making a feoffment to any other person and his heirs, to the use of or upon confidence or trust for such former person and his heirs. Thus, if a feoffment be made to A. and his heirs, to the use of B. and his heirs, an estate in fee simple will now pass to B., as effectually as if the feoffment had been made directly unto and to the use of B. and his heirs in the first instance. The words to the use of are now almost universally employed for such a purpose; but "upon confidence," or "upon trust for," would answer as well, since all these expressions are mentioned in the statute.