17 Johnson (N. Y.), 548. - 1820. [Reported herein at p. 93.]
Kennedy, J., in
1 Wharton (Pa.), 514. - 1836. [Reported herein at p. 95.]
1 Uses Before the Statute Of Uses. - "Our early jurists regarded the legal estate in fee simple, and the conterminous use, as being two separate things, commonly found together, and prima facie presumed to be united in the legal tenant; but capable of separation, and having definite characteristics when separated. When such separation took place, the use conferred the right both to take the profits of the lands, and also to call upon the person having the legal estate to make such conveyances thereof as the person having the use should think fit. * * * Regarded as a descendible entity, the descent of the use followed the descent of the thing of which it was the use. So that the use of lands which were subject to no peculiar local custom, held for an interest analogous to a common-law fee simple, descended to the heir general [of the cestui que use] * * * The person entitled to the use (cestui que use) might alienate the use by conveyance inter vivos. So also he might devise the use before the Statute of Wills, although the use of lands which were not themselves devisable." Challis' Law of Real Property (2d ed), pp. 351-2. Such use of lands might be a (quasi) fee, or for life, or for years. The cestui que use hav ing, in equity, the right to the possession and full control of the lands, a use was certainly an "equitable estate." Of course, at law, the cestui que use in possession was regarded as no more than the tenant at will of the holder of the legal title.
Uses Under the Statute of Uses.- In 1535 (27 Hen. VIII., c. 10, see
Bolles' Important Eng. Statutes, p. 32), was passed the Statute of Uses, the purpose of which was to convert the use into a legal estate and make it fully subject to the law governing such estates. Had this statute fully brought about that result we should probably have heard no more of "equitable estates." For the operation and effect of this statute in conveyancing, see below under "Title." The New York Statute of Uses will be found in §§ 72 and 73 of the N. Y. Real Property Law.
The Modern "Trusts." - The uses which survive the statute, as equitable rights or interests, are now called "trusts." The following are the more important:
(1) Active Trusts. - The statute was held not to execute the use when the legal holder of the land had duties to perform with reference thereto, or for the beneficary, which required that he should retain the possession or control thereof. The interest of the beneficiary in these "active trusts" is rather an equitable chose in action than an "estate." See N. Y. R. P. L., §§ 76, 77 for trusts of this kind permitted in New York. See also pp. 583-604, supra, for "spendthrift trusts."
(2) Chattel Interests Limited to Uses. - "The term seised, used in describing its [the Statute of Uses'] operation, means invested with the legal possession for an estate of freehold, excluding possession for a term of years or a chattel interest. Therefore, a use declared or raised upon a term of years is not executed by the statute and remains cognizable in equity only." 1 Leake, Law of Property in Land, 118. A gift then to A. for ten years to the use of B. does not give B. the legal interest, but only an "equitable estate for years." But see N. Y. R. P. L., § 72.
(3) A Use upon a Use. - The courts have decided that the statute does not execute a use limited upon a use; that is to say, upon a feoffment to A. and his heirs to the use of B. and his heirs, to the use of, or in trust for C, the statute executes the use in B. vesting him with a legal title, but is then exhausted and the use limited to C. becomes an equitable estate if the trust was passive; an equitable chose in action if the trust was active. But see N. Y. R. P. L., § 72.
(4) Trusts for the Separate Use of a Married Woman. - These are held not to be executed by the statute and remain "equitable estates" unless, of course they are in the form of active trusts. See Pullen v. Rianhard, p. 95, supra.
(5) Trusts Created by Operation of Law. - These are (a) resulting trusts, as in cases where the grantor disposes of the legal title only, where the express object of the trust fails in whole or in part, and where a conveyance is taken in the name of another than the one paying the consideration (see N. Y. R. P. L., § 74); (b)constructive trusts, where a title is acquired by fraud and a court of equity, converts the wrongdoer into a trustee for the one defrauded. (See Hopkins on Real Property, pp. 265 and 269.) In these cases the statute does not execute the use, and the interest of the beneficiary may in some jurisdictions still be an "equitable estate." - Ed,