The rule which existed before the statute that, upon a feoffment, a use resulted in favor of the feoffor in the absence of any consideration and of any declaration of use, was presumably based upon the prevalence of the custom at that time of divesting oneself of the legal title to land, retaining the use,46 a custom which justified the assumption made by the courts that the beneficial interest was in such case not intended to pass. After the change of conditions produced by the statute, however, there would seem to have been no basis whatsoever for the indulgence by the courts in any such assumption, except in the cases referred to below, of a partial declaration of a use. It has, however, been said that since the statute a use is still presumed to result to the person making the conveyance in the case of a conveyance by feoffment, fine or recovery, and that the use so resulting is executed by the statute, so that the person making the conveyance remains seised as before.47 Occasionally it is stated that this same doctrine is applicable in the case of a modern conveyance.48 The application of such a view in connection with a conveyance by fine or recovery was ordinarily well calculated to effect the intention of the parties, since the purpose of such a conveyance was not so much to transfer the ownership as to bar the entail or strengthen the title.49 The propriety of its application in connection with a feoffment, however, is by no means apparent, and indeed while there are dicta to the effect that, after the statute, upon a feoffment without consideration and without any declaration of use, the use still resulted in favor of the feoffor,50 there appears to be no decision to that effect, except when the use was partially declared.51

45. Challis, Real Prop. 387; 1 Hayes, Conveyancing (5th Ed.) 82; Sugden, Powers (8th Ed.) 146; Jarman, Wills, 1137; Lewin, Trusts, 220. See Broughton v. Langley, 2 Salk, 679, Leicester v. Biggs, 2 Taunt. 109; In re Brooke [1894] 1 Ch. 43.

46. Sugden's Gilbert, Uses 89;

Maitland, Equity, 33; articles by Professor George P. Costigan, 12 Mich. Law Rev. at p. 515, 27 Hary. Law Rev. at p. 440.

47. Sanders, Uses, 97; Williams, Real Prop. (21st Ed.) 125.

48. Leake, Prop. in Land, 107; Edwards, Prop., Land (4th Ed.) 314.

- Partial declaration of use. If, upon a conveyance in fee simple, a use is declared by the grantor in favor of another for an estate of less duration, a use as to the fee simple will result to the grantor, it being presumed, from the express mention of the use for a limited period, that no further beneficial interest is to pass. For instance, if A conveys land to B and his heirs to the use of C for life, the use will result to A, subject to the use executed in B and A will have an estate in fee simple in reversion.52 If, however, the use is declared, not to another person, but to the grantor, for an estate for life or years, no use will result to the grantor, since if it were to do so, the estate for life or years would merge therein, and his estate would, in violation of his express declaration, be the same as before.53

49. "The form of a fine is to give a title to the conusee; but in truth, it is for the convenience of the conusor; and, from the constant usage, the presumption is, that it is levied to his use." Lord Mansfield in Roe v. Popham, Doug. 25.

50. Villiers v. Beaumont, 2 Dyer 146 (71), 2 Rolle's Abr. 781; See Beckwith's Case, 2 Coke 58a.

51. That the use is, since the statute, presumed to result to the feoffer, is explicity denied by Chief Justice Holt in Shortridge v. Lamplugh, 2 Ld. Raym. p. 801.

52. Leake, Prop. in Land, 107; Co. Litt. 22b, 23a, 271b; 1 Hayes Conveyancing (5th Ed.) 464; 1 Sanders, Uses & Trusts, 101; Kenniston v. Leighton, 43 N. H. 311. In Van der Volgen v. Yates, 9 N. Y. 219, Seld. Notes 186, it was decided that the recital of the payment of a consideration prevented the resulting use in such case, the fee simple consequently vesting in the grantee named to held to uses. This does not accord with the view expressed in 1 Sanders, Uses and Trusts, 102.

- Future uses. As uses could be created, before the statute,, to arise or shift from one person to another in the future, after the statute it was possible, by the creation of such future uses, to be immediately turned by the statute into legal estates, to create future legal estates, a thing which could not be done at common law.54 Moreover, where, before the statute, a use was limited to arise according to the appointment or direction of some person named in the deed for that purpose, after the statute such a use was excuted as it arose, and it thus became possible, instead of actually limiting the future legal estate or estates at the time of the conveyance, to name some other person who should limit them in the future.55

If, upon a conveyance in fee simple, a use is declared to arise in the future, and no present use is declared, a use results in favor of the grantor as to the whole fee simple, it being presumed, from the express mention of the future use, that no present use is intended to pass. The use thus resulting in favor of the grantor is executed by the statute, so that the grantor has a legal estate in fee simple, subject to be divested in the future.56