Judge Jackson seems to have supposed that when such a deed is executed the legal estate or seisin passes immediately to the grantee, and that, until his own future freehold vests, he holds this legal estate, or ideal seisin, to the use of the grantor. But such a theory is wrong, and contrary to every authority we have been able to find. In fact, under the statute of uses, such a theory, which separates the legal estate from the use, cannot be correct; for, by the very terms of the statute, the lawful seisin, estate, and possession, shall be deemed and adjudged to be in him that hath the use, to all intents, constructions, and purposes, in law; and is made applicable to "any-such use in fee simple, fee tail, for life, or for years." 'The seisin remains in the person creating the future use till the springing use arises, and is then executed to this use by the statute." 2 Washburn on Real Prop. 282. " If raised by a covenant to stand seised, or bargain and sale, the estate remains in the covenantor or bargainor until the springing use arises." Gilbert on Uses, Sug-den's note, 163. "A person may covenant to stand seised, or bargain and sell, to the use of another at a future day." In such a case, "the use is served out of the grantor's seisin." 4 Kent, 298. "Here is a conveyance to the bargainee to take effect at the decease of the bargainor, which creates a resulting use to the latter during life, with a vested use in remainder to the bargainee in fee, both uses being served, in succession, out of the seisin of the bargainor." Jackson v. Dunsbah, 1 Johns. Cases, 96.
The rule that a bargain and sale must be to the use of the bargainee and not to the use of another, applies to only so much of the estate as is bargained for, and not to the residue, which is not bargained for, and not paid for; and the rule is not violated and there is nothing inequitable or repugnant to the grant, in requiring him to wait for the enjoyment of the property till such time as, by the express terms of the deed under which he claims, he is entitled to it.
It will be noticed that Judge Jackson assumes the existence of a rule, that one use cannot be limited upon another, and that it would be a violation of this rule to give effect to a deed of bargain and sale of a freehold, to commence in futuro. Such a rule does exist in England. Mr. Watkins, in his introduction to his very able work on conveyancing, says, that "about the time of passing the statute of uses, some wise man, in the plentitude of legal learning, declared there could not be an use upon an use; and that this very wise declaration, which must have surprised every one who was not sufficiently learned to have lost his common sense, was adopted;" and Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591, says, that by this means, a statute made upon great consideration, introduced in a solemn and pompous manner, has had no other effect than to add, at most, three words to a conveyance. Mr. Williams, in his work on Real Property, page 124, says this rule has much of the technical subtility of the scholastic logic which was then prevalent. Lord Mansfield calls it "absurd narrowness." 2 Doug. 774. Blackstone calls it a "technical scruple;" and Mr. Sugden, in a note to Gilbert on Uses, page 348, says it never ought to have been sanctioned at all. In Thacher v. Omans, decided in 1792, reported in 3d Pick. 521, on page 528, the court refer to the censures of Blackstone and Lord Mansfield, and express strong doubts as to the propriety of admitting it in this country; and Mr. Greenleaf says it may well be doubted whether the rule has been adopted in this country. Note to Greenl. Cruise, title 12, c. 1, § 4. With such a weight of authority against it, if the effect of the rule would be to defeat such conveyances as we are now considering, we think we might be warranted in rejecting it altogether. But such is not its effect. When a freehold is conveyed, to commence at a future day, till such future day arrives the use results to the grantor, and then passes to the grantee; and the uses are not limited one upon the other, but one after the other; and, in this way, a fee simple may be carved into an indefinite number of less estates. "So long as regular order is laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates are granted, or on how many persons the same estate is bestowed. Thus, a grant may be made at once to fifty different people, separately, for their lives." Williams on Real Prop. 189-90. "Shifting or substituted uses do not fall within this technical rule of law, for they are merely alternate uses." 4 Kent's Com. 301.
The statement that a freehold to commence in futuro cannot be conveyed by deed of bargain and sale, which seems first to have been made in Pray v. Pierce, as before stated, has been several times repeated in Massachusetts, Walsh v. Foster, 12 Mass. 93; Parker v. Nichols, 7 Pick. 115; Gale v. Coburn, 18 Pick. 397; Brewer v. Hardy, 22 Pick. 376; and once at least in this State, Marden v. Chase, 32 Maine, 329; but the only case we have found in which an attempt has been made to give a reason for the supposed rule is that of Welsh v. Foster; and a careful examination has satisfied us that the argument in that case is unsound, and not supported by an adjudged case that has the weight of authority. It is admitted in all these cases that if it can be shown that the parties to such deeds are near relatives, effect may be given to them as covenants to stand seised, made, not as they purport to be for a pecuniary consideration, but in consideration of love and affection. And there is no doubt that if two deeds should be executed instead of one, that is, if the grantor should first convey the whole estate, and then take back a life lease, the transaction would be held legal.
The doctrine, therefore, that a freehold to commence in futuro cannot be conveyed by a deed of bargain and sale, amounts to no more than this: That if the owner of a fee simple estate proposes to reserve to himself a life estate, and to sell the residue, if he deals with a relative, such an arrangement can be carried into effect by making one deed; but if he deals with a stranger it will be necessary to make two. It is certainly very strange that a doctrine so technical, so easily evaded, and so utterly destitute of merit, should have gained the currency it has.