143. The statute of uses enacted that whenever any person should be seised of any lands to the use, confidence, or trust of another, the latter should be deemed in lawful seisin of a legal estate of a like quantity and quality as he had in the use.
144. The statute of uses is in force in many of the states of the Union (p. 254).
Although many convenient purposes were served by the practice of conveying lands to uses, on the other hand it had a tendency to make titles uncertain, and was very unpopular with the great landowners of England, because they were deprived of many of the incidents attached to feudal estates.10 A number of statutes were passed, attempting to prevent these results, but they proved ineffectual. Finally the famous statute of uses11 was enacted, which provided "that where any person or persons stand, or be seized, or at any time hereafter shall happen to be seized of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments to the use, confidence, or trust of any other person or persons or of any body politick by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or otherwise, by any manner means whatsoever it be, that in every such case, all and every such person and persons * * * shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors," etc., "* * * to all intents, constructions and purposes in the law, of and in such like estates as they had or shall have and in use, trust or confidence of or in the same." 12 The statute contained other provisions, all intended to produce the effect that, whenever a person was entitled to the beneficial interest in land, the legal title should be vested in him. An exception was made, however, so that wives on whom a jointure had been settled would not be entitled to dower in the equitable estates of their husbands which should be executed by the statute.13 The statute of uses had a very important effect on conveyancing, because, as we shall see later,14 it became possible to convey the legal title to lands by methods unknown to the common law.15
10 The Inconveniences arising from lands being conveyed to uses are recited In the preamble of the statute of uses. See, also, Lloyd v. Spillet, 2 Atk. 148.
11 27 Hen. VIII. c. 10.
12 Broughton v. Langley, 2 Salk. 679; Lord Altiham v. Earl of Anglesey, Gilb. Cas. 16. The possession passes immediately. Anon., Cro. Eliz. 46. Heelis v. Blain, 18 C. B. (N. S.) 90. But see Orme's Case, L R. 8 C. P. 281.
Statute of Uses in the United States.
The statute of uses has been re-enacted in a number of our states, either in terms or in substance, and in some others it is held to exist as part of the common law.16 Other states, however, following the lead of New York, have abolished all uses and trusts, except in certain specified cases permitted by the statutes.17 These are: (1) Trusts implied by law, for the prevention of fraud; (2) active trusts, where the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without giving him the legal estate and actual possession.
145. The statute of uses was held not to apply to,-(a) Chattel interests. (b) Future uses. (c) Active uses.
(d) Estates for the separate use of married women. (e) A use upon a use.
(f) Trusts created by operation of law.
According to the wording of the statute of uses, it was held that three things were necessary for its operation: There must be (1) a person seised to a use; (2) a cestui que use in esse; (3) a use in esse.18 The use, however, might be either in possession or in expectancy.19 The cases in which the statute of uses was held not to operate to vest the legal title in the beneficiary, enumerated in the black-letter text, rendered the statute practically inoperative. It was held that chattel interests were not within the statute, because there could be no seisin of such interests, and the provision of the statute was "that where any person or persons stand or be seised."20 Nor did the statute operate upon future uses,21 but such uses would be executed by the statute as soon as they became vested.22 A distinction was made by the courts between active and passive uses; that is, where the trustee had no duties to perform, but merely held the legal title for the benefit of the cestui que use, the statute was permitted to operate.23 But when anything was to be done by the trustee in relation to the trust property, such as collecting the rents and profits, or selling the property, the statute did not operate, because the trustee could not perform these duties unless he held the title to the land.24 The former was called a passive, and the latter an active, use. "Very slight duties imposed on the trustee were sufficient to prevent the operation of the statute.25 Lands conveyed to the separate use of a married woman are not within the scope of the statute, because, if the legal title should vest in her, her husband would become entitled to the control of the estate, thus producing an effect contrary to the intention with which such uses are created.26 Under statutes
13 27 Hen. VIII. c. 10, § 6.
14 Post, p. 409.
15 Lutwich v. Milton, Cro. Jac. 604; Roe v. Tranmer, 2 Wils. 75. See, also, Sammes' Case, 13 Coke, 54.
16 2 Washb. Real Prop. (5th Ed.) p. 465. The statute of uses Is not In force In Ohio. Gray, Perp. p. 45, § 68.
17 1 Stim. Am. St. Law, § 1703. For trusts not within the statute, see Cowen v. Rinaldo, 82 Hun, 479, 31 N. Y. Supp. 554.
18 Witham v. Brooner, 63 111. 344; Brent's Case, 2 Leon. 14. 19 2 Washb. Real Prop. (5th Ed.) 434.
20 Merrill v. Brown, 12 Pick. (Mass.) 216; Galliers v. Moss, 9 Barn. & C. 267; Hopkins v. Hopkins, 1 Atk. 581.
21 Wyman v. Brown, 50 Me. 139; Proprietors of Town of Shapleigh v. Pils-bury, 1 Me. 271; Savage v. Lee, 90 N. C. 320.
22 See Chudleigh's Case, 1 Coke, 120a, and cases In note 21 supra.
23 Posey v. Cook, 1 Hill (S. C.) 413; Ware v. Richardson, 3 Md. 505; Sullivan v. Chambers, 18 R. I. 799, 31 Atl. 167.
24 Fay v. Taft, 12 Cush. (Mass.) 448; Barnett's Appeal, 46 Pa. St. 392; Gott v. Cook, 7 Paige (N. Y.) 521; Morton v. Barrett, 22 Me. 257; Posey v. Cook, 1 Hill (S. C.) 413; Schley v. Lyon, 6 Ga. 530.
25 Morton v. Barrett, 22 Me. 257. As soon as the active duties of the trustee are performed, the statute vests the legal estate in the cestui que trust. Feigner v. Hooper, So Md. 262, 30 Atl. 911.
26 steacy v. Rice, 27 Pa. St 75; Pullen v. Rlanhard, 1 Whart. (Pa.) 514; which give a married woman the same right of disposition over her property as a feme sole, the reason for this rule would not obtain, and the legal estate would vest in her.27 And without such statutes, if a married woman conveyed her equitable estate, the statute would execute the legal title in her assignee.28
The most important ruling of the courts on the statute of uses, however, was in Tyrrell's Case,29 about 20 years after the statute was passed, in which it was held that a use upon a use was not within the terms of the statute; that is, where an estate was conveyed to A. for the use of B. for the use of C. Before the enactment of the statute, under such a conveyance, the use to C. would be void. A use could not be engendered of a use, it was said. And after the statute it was held that the legal title would be executed in B., but that then the force of the statute would be exhausted, and B. would hold the estate for the benefit of C.30 In this way the necessity arose again for the protection of the beneficiary by the court of chancery. In other words, the courts of law treated the first use as executed by the statute, and the second as void. Such a construction evidently defeated the intention of the grantor, and consequently equity interposed, and gave effect to the second use. Therefore all that was necessary to avoid the effect of the statute was to add the words, "to the use of." 31 The statute of uses does not operate upon beneficial interests created by operation of law.32 The equitable estates upon which the statute of uses was held not to operate are called "trusts," 33 and their incidents are the same as those of
Bush's Appeal, 33 Pa, St 85; Nevil v. Saunders, 1 Vera. 415; Harton v. Har-ton, 7 Term R. 653. But see Ware v. Richardson, 3 Md. 504.
27 Bratton v. Massey, 15 S. G. 277; Sutton v. Aiken, 62 Ga. 733; Bayer v. ( ockrill. 3 Kan. 282.
28 Leaycraft v. Hedden, 4 N. J. Eq. 512; Imlay v. Huntington, 20 Conn. 146; Cooke v. Husbands, 11 Md. 492.
29 Dyer, 155a.
30 And see Doe v. Passingham, 6 Barn. & C. 305. But see Peacock v. Eastland, L. R. 10 Eq. 17.
31 Cro'xall v. Shererd, 5 Wall. 268; Jackson v. Gary, 16 Johns. (N. Y.) 302; Jackson v. Myers, 3 Johns. (N. Y.) 388; Guest v. Farley, 19 Mo. 147. This rule has been abolished by statute in Georgia, and the use is executed to the last beneficiary. See 1 Stim. Am. St Law, § 1701; Code, Ga. 1882, § 2315.
32 See post, p. 265.
33 Before the statute of uses the term "trust" was applied to equitable es§ 146) uses before the enactment of the statute, and the rights and duties of the owners of the two classes of estates will be treated of together in this chapter.