The Statute of Uses.
(f) 1 Sand. Uses, 62 (61, 5th ed.)
(g) Stat. 27 Hen. VIII. C. 10, preamble.
(h) See particularly stat. 1 Rich.
III. c. 1, enabling the cestui que use, or person beneficially entitled, to convey the possession without the concurrence of his trustee. (i) 27 Hen. VIII. e. 10.
Feoffment to A. and his heirs to the use of B. and his heirs.
Feoffment without consideration.
(k) 1 Sand. Uses, 99, 100 (95, 5th ed.)
The word trust, however, is never employed in modern conveyancing, when it is intended to vest an estate in fee simple in any person by force of the Statute of Uses. Such an intention is always carried into effect by the employment of the word use; and the word trust is reserved to signify a holding by one person for the benefit of another similar to that (l), which, before the statute, was called a use. For, strange as it may appear, with the Statute of Uses remaining unrepealed, lands are still, as everybody knows, frequently vested in trustees, who have the seisin and possession in law, but yet have no beneficial interest, being liable to be brought to account for the rents and profits by means of the Court of Chancery. The Statute of Uses was evidently intended to abolish altogether the jurisdiction of the Court of Chancery over landed estates (m), by giving actual possession at haw to every person beneficially entitled in equity. But this object has not been accomplished; for the Court of Chancery soon regained in a curious manner its former ascendancy,and has kept it to the preseni day. So that all that was ultimately effected by the Statute of Uses, was to import into the rules of law some of the then existing doctrines of the Courts of Equity (n), and to add three words, to the use, to every conveyance (o).
Trusts still exist notwithstanding the Statute of Uses.
(l) But not the. same, 1 Band. Uses, 266 (278, 5th ed.)
(m) Chudleigh's case, 1 Rcp. 124, 125.
The manner in which the Court of Chancery regained its ascendancy was as follows. Soon after the passing of the Statute of Uses, a doctrine was laid down, that there could not be a use upon a use (p). For instance, suppose a feoffment had been made to A. and his heirs, to the use of B. and his heirs, to the use of C. and his heirs; the doctrine was, that the use to C. and his heirs was a use upon a use, and was therefore not affected by the Statute of Uses, which could only execute or operate on the use to B. and his heirs. So that B. and not C. became entitled, under such a feoffment, to an estate in fee simple in the lands comprised in the feoffment. This doctrine has much of the subtlety of the scholastic logic which was then prevalent. As Mr. Watkins says (q), it must have surprised every one, who was not sufficiently learned to have lost his common sense. It was however adopted by the courts, and is still law. Even if the first use be to the feoffee himself, no subsequent use will be executed, and the feoffee will take the fee simple; thus, under a feoffment unto and to the use of A. and his heirs, to the use of C. and his heirs, C. takes no estate in law, for the use to him is a use upon a use; but the fee simple vests in A. to whom the use is first declared (r). Here then was at once an opportunity for the Court of Chancery to interfere. It was manifestly inequitable that C, the party to whom the use was last declared, should be deprived of the estate, which was intended solely for his benefit; the Court of Chancery, therefore, interposed on his behalf, and constrained the party, to whom the law had given the estate, to hold in trust for him to whom the use was last declared. Thus arose the modern doctrine of uses and trusts. And hence it is, that if it is now wished to vest a freehold estate in one person as trustee for another, the conveyance is made unto the trustee, or some other person (it is immaterial which), and his heirs, to the use of the trustee and his heirs, in trust for the party intended to be benefited (called cestui que trust) and his heirs. An estate in fee simple is thus vested in the trustee, by force of the Statute of Uses, and the entire beneficial interest is given over to the cestui que trust by the Court of Chancery. The estate in fee simple, which is vested in the trustee, is called the legal estate, being an estate, to which the trustee is entitled, only in the contemplation of a court of law, as distinguished from equity. The interest of the cestui que trust is called an equitable estate, being an estate to which he is entitled only in the contemplation of the Court of Chancery, which administers equity. In the present instance, the equitable estate being limited to the cestui que trust and his heirs, he has an equitable estate in fee simple. He is the beneficial owner of the property. The trustee, by virtue of his legal estate, has the right and power to receive the rents and profits; but the cestui que trust is able, by virtue of his estate in equity, at any time to oblige his trustee to come to an account, and hand over the whole of the proceeds.
No use upon a use.
(n) 2 Fonb. Eq. 17.
(o) See Hopkins v. Hopkins, 1 Atk. 591; 1 Sand. Uses, 265 (277, 5th ed.)
(p) 2 Black. Com. 335.
(q) Principles of Conveyancing, Introduction.
(r) Doe d. Lloyd v. Passing-ham, G Barn. & Cres. 305.
We have now arrived at a very prevalent and important kind of interest in landed property, namely, an estate in equity merely, and not at law. The owner of such an estate has no title at all in any court of law, but must have recourse exclusively to the Court of Chancery, where he will find himself considered as owner, according to the equitable estate he may have. Chancery in modern times, though in principle the same as the ancient court which first gave effect to uses, is yet widely different in the application of many of its rules. Thus we have secn(s) that a consideration, however trifling, given by a feoffee, was sufficient to entitle him to the use of the lands of which he was enfeoffed. But the absence of such a consideration caused the use to remain with, or more technically to result to, the feoffor, according to the rules of Chancery in ancient times. And this doctrine has now a practical bearing on the transfer of legal estates*; the ancient doctrines of Chancery having, by the Statute of Uses, become the means of determining the owner of the legal estate, whenever USES are mentioned. But the modern Court of Chancery takes a wider scope, and will not withhold or grant its aid, according to the mere payment or non-payment of five shillings : thus, circumstances of fraud, mistake, or the like, may induce the Court of Chancery to require a grantee under a voluntary conveyance to hold merely as a trustee for the grantor; but the mere want of a valuable consideration would not now be considered by that court a sufficient cause for its interference (t).