This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Since, by the express terms of the statute, uses were thereafter to be regarded as converted into legal estates, it became neces29. 1 Perry, Trusts, Sec. 299, and note; Flint, Trusts. Sec. 121. See 1 Stimson's Am. St. Law, Sec. 1702; note to Kay v. Scates, 78 Am. Dec. 399 (37 Pa. St. 31); articles in 5 Am. Law Reg. 641, 6 Am. Law Reg. 65. Article by John R. Rood Esq. in 4 Mich. Law Rev. 109.
30. Webster v. Cooper 14 How. (U. S.) 488, 14 L. Ed. 296; Tindal v. Drake, 51 Ala. 504; Ohio & Colorado Smelting & Refining Co. v. Barr, 58 Colo. 116, 144 Pac. 552; Bryan v. Bradley, 16 Conn. 474; Adams v. Guerard, 29 Ga. 651, 76 Am. Dec. 624; Smith v. Smith 254 111. 488, 98 N. E. 950; Webb v. Rockfeller, 66 Kan. 160, 71 Pac. 283; Rogers v. Sisters of Charity of St. Joseph, 97 Md. 550, 55 Atl. 318; Dakin v. Savage, 172 Mass. 23, 51 N. E. 186; Fellows v. Ripley, 69 N. H. 410, 45 Atl. 138; McKenzie v. Sumner, 114 N. C. 425, 19 S. E. 375; Ahl v. Liggett, 246 Pa. 246, 92
Atl. 202; Sullivan v. Chambers, 18 R. I. 799, 31 Atl. 167; Reeves v. Brayton, 36 S. C. 384, 15 S. E. 658; Hughes v. Farmers' Savings & Building & Loan Ass'n, - Tenn. Ch. App. -, 46 S. W. 362; Schenck v. Wicks, 23 Utah, 576, 65 Pac. 732.
31. The Statute of Uses has been decided not to be in force in Nebraska (Farmers' & Merchants' Ins. Co. v. Jensen, 58 Neb. 522 44 L. R. A. 861, 78 N. W. 1054), Ohio (Helfenstine v. Garrard, 7 Ohio, 275), and Vermont (Gorham v. Daniels, 23 Vt. 600).
In Florida, Kentucky, Mississippi, and Virginia, the statute is not in force, it seems, except for the purpose of giving effect to conveyances under the statute. 1 Perry, Trusts, Sec. 299, note.
In New York, and in those states which have adopted the legislation of that state abolishing uses and passive trusts, the Statute of
[ Sec. 100 sary for the courts of law to take cognizance of them, though previously they were recognized only in chancery.32 In so doing, these courts applied the rules developed by chancery as to the mode of creation of the use, and consequently transactions of a character which, before the statute, would have created a use in a person other than the legal tenant, after the statute, as a general rule, gave such person not only the beneficial use, but also the legal title. The statute thus provided a means of transferring the legal title in ways unknown to the common law, and eventually effected a complete revolution in the systems of conveying land. So a use raised by a conveyance operating by transmutation of possession was executed in the cestui que use. For example, on a feoffment to A and his heirs to the use of (or in trust for)33 B and his heirs, B instead of having a fee in the use only, acquired, by means of the statute, the legal title in fee.34
Uses which, before the statute, were, as explained above, created without any transmutation of possession, by a bargain and sale, were also by the statute converted into legal estates. Thus, if A for a consideration of £100, bargained and sold land to B and his heirs, the use thereby created in B was converted into a legal estate in fee simple.35 A bargain and sale thus operating, by reason of the consideration, to transfer the use or equitable title, and the statute then transferring the legal title to the same person, it became a regularly recognized mode of conveyance, the formalities necessary for the transfer of land at common law, such as livery of seisin, entry, and attornment, being thereby avoided. The effect of the Statute of Uses, indeed, was to enable one to transfer land by a bargain and sale not incorporated in any writing, and the impolicy of allowing the title to land thus to depend on a mere oral, and perhaps secret, transaction, led to the enactment, in the same year, of the Statute of Enrollments, which required that every bargain and sale of an estate of inheritance or freehold should be made by deed, to be enrolled within six months after its date in a court or public office.36
Uses is not in force, but the statutory provisions referred to have a similar effect. See post Sec. 109.
32. Leake, Prop. in Land, 105.
33. The words "use" and "trust" are synonymous in this connection, and the employment of one or the other does not affect the question of the application of the statute (Carr v. Richardson 157 Mass. 576), though the word
"use" is ordinarily employed if it is intended that the statute shall operate, and a legal estate only be created, and the word "trust" is employed if a trust is intended to be created. Williams, Real Prop. (21st Ed.) 180.
34. 1 Sanders, Uses & Trusts, 95; Williams, Real Prop. 175.
35. 2 Sanders, Uses and Trusts, 53; 1 Hayes, Conveyancing, 74.
Sec. 100 ]
Some years after the passage of the Statute of Uses another form of conveyance, based on the statute, came to be recognized, namely, "covenant to stand seised."37 A covenant to stand seised involved a declaration or agreement made by the owner of land, by an instrument under seal, to the effect that he would thereafter hold the land to the use of some blood relation or of a person about to be connected with him by marriage.38 The use thus declared was recognized by the courts for the purpose of being executed by the Statute of Uses, and it was thus possible to make a conveyance, even of a freehold estate, to a relative, without any necessity of enrolling the instrument. So, if A covenanted to stand seised of land to the use of his son, B, and his heirs, a
36. This Statute was not passed, as is sometimes said, to cure an unforeseen defect in the Statute of Uses. It was an integral part of the scheme of legislation devised by the Crown lawyers for the purpose of dealing with uses. Professor Holdsworth in 26 Harv. Law Rev. at p. 115, note.
37. It was first recognized in Sharington v. Strotton, Plowd. 298 (anno 1565). See articles by Professor Ames, 21 Harv. Law Rev. at p. 269, Lectures on Legal History 241; and by Professor Holdsworth, 26 Harv. Law Rev. at p. 120, note. 38. 1 Hayes, Conveyancing (5th Ed.) 75; 2 Sanders, Uses & Trusts, 1 Leake, 109; Digby, Hist. Real Prop. 354; Roe v. Tranmer, 2 Wils. 75, 3 Smith, Lead. Cas. (9th Ed.) 1780, and notes. Sea post Sec. 428.
[ Sec. 100 use was created in B which was executed by the statute, and B acquired the legal estate as well.39
The statute, by its express terms, transfers not only the legal title, but also the seisin and the possession of the land; and hence, by a bargain and sale, or by a covenant to stand seised, the grantee acquires the seisin and possession, as if there had been livery of seisin to him, or, in the case of an estate for years, an entry by him, provided the grantor had the immediate seisin or possession himself.40
Partaking somewhat of the nature of a conveyance by bargain and sale is that by lease and release, which is effected in the following manner: Even before the Statute of Uses, it was not unusual to transfer a freehold by the making of a lease for years to the intending purchaser, who, after his entry into possession under the lease, was competent to receive from the lessor a deed of release of the reversion; such a deed being the recognized mode of conveyance of a reversion to one having a prior vested estate in the land.41 Thus, the conveyance of a present estate of freehold was effected without any livery of seisin.42 Since, however, it was necessary that the purchaser should enter on the premises in order that he might he able to take a release from the lessor, this mode of conveyance had little, if any, advantage over that by livery of seisin. But under the Statute of Uses the necessity of entry could he avoided, the statute transferring the possession, by the express terms thereof, and it became the practice for the intending vendor to make a bargain and sale for a year to the purchaser, which raised in the latter a use which was executed by the statute, giving him a legal estate for years, and then a deed of release of the reversion was made to him.43 This mode of conveyance was originally devised for the purpose of avoiding the statutory requirement as to enrollments. The bargain and sale for a year, not being of a freehold, was valid and effective without enrollment, and it was thus made possible to convey a legal freehold estate without the inconveniences incident to livery of seisin, and without the notoriety incident both to livery of seisin and to enrollment.44
39. Professor Ames says (21 Harv. Law Rev. at p. 269): "These uses are commonly said to arise in consideration of blood or marriage. But consideration in such case is not used in its normal sense of the equivalent for a promise, but in the general sense of reason or inducement for the agreement to stand seised. The exception in favor of those related by blood or marrage had in truth nothing to do with the doctrine of consideration and was established in the interest of the great English families."
40. Williams, Settlements, 11 et seq; Anonymous, Cro. Eliz. 46, 1 Gray's Cas. 506; Comyn, Dig. tit. "Uses" (1); Heelis v. Blain, 18 C. B. (N. S.) 90 Hadfield's Case, L. R. 8 C. P. 306; Witham v. Brooner, 63 111. 344; Hutchins v. Hey-wood, 50 N. H. 491.
"Generally, by the term possession, when that term is employed in treating of uses as they were affected by the statute, nothing more is to be understood than that the statute annexed to the use a commensurate legal interest in the land itself, conferring a right or title to the actual possession, either immediate or future, vested or contingent, according to the tenor and intention of the use." 1 Hayes, Conveyancing 79. It has been held that the possession given by the statute of uses is not sufficient to support an action of trespass. Lutwich c. Mitton, Cro. Jac. 604; Geary v. Bearcroft, Cart. 57, 66.
- In connection with wills. Since the Statute of
Wills, allowing devises of freehold interests in lands, was not passed until several years after the Statute of Uses, it has been contended by some authorities that the latter statute does not apply to devises; but a contrary opinion has generally prevailed, and the question is really immaterial, since it is admitted by the former class of authorities that where limitations in a will are such as would have a recognized effect in connection with the Statute of Uses in a deed, it will be presumed that the testator intended them to have such effect. Accordingly, the Statute of Uses may be regarded as applying to devises as well as to transactions inter vivos.45
41. See, post Sec. 427.
42. Litt. Sec.Sec. 459, 460; Co. Litt. 46b, 270a; Sugden's Gilbert, Uses, 225.
43. Williams, Real Prop 201; Sugden's Gilbert, Uses, 224; 4 Cruise, Dig. tit. 32, c. 11; Barker v. Keat, 2 Mod. 249, Freem. 249; 1 Gray's Cas. 491; Lutwich v. Mit-ton, Cro. Jac. 604, 1 Gray's Cas. 491.
44. 2 Preston, Conveyancing 219.