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 .
In construing the statute, it was decided that certain classes of uses were not within its operation, and that they consequently were not changed into legal estates, and these uses have in part survived under the name of "trusts." These uses not within the statute are (1) active uses,
53. Leake, Prop. in Land, 107; 1 Sanders, Uses & Trusts, 102; 1 Cruise's Dig. tit. 11, c. 4, Sec. 47; Adams v. Tertenants of Savage, 2 Salk. 679. If the use declared be for an estate tail, the use fee simple may result to him, since an estate tail is not merged in the reversion. Dyer, 111b, in marg.; 1 Cruise's Dig. tit. 11, c. 4, Sec. 46.
54. Post Sec. 156.
55. Post Sec. 313.
56. Post Sec. 156, note 87.
- Active uses. It has always been held, since a few years after the passage of the statute, that if the use or trust imposed on the feoffee is of an active nature, involving the exercise of some power, agency, or control by him, it is not executed by the statute, on the ground that the exercise of such duties by him is impossible unless he is permitted to retain the legal title.58 Accordingly, the statute does not operate if the holder of the legal title is to pay the rents to the beneficiary
57. To these cases excepted from the statute may be added that of a conveyance to one in fee tail to the use of another, the statute not applying, it seems, in such a case, since a tenant in fee tail would have no power over the seisin, this being appropriated to the heirs by the Statute De Donis, and since the Statute of Uses does not execute any use which, before the statute, the feoffee could not be compelled to execute. Cooper v. Franklin, Cro. Jac. 400, Sug-den's Gilbert, Uses 19; Lewin Trusts (12th Ed.) 5. Compare 1 Sanders, Uses & Trusts, 118. Moreover, a use or trust arising in favor of one paying the consideration for a conveyance to another has never been regarded as executed by the statute. See post Sec. 107 (c).
58. 1 Sanders, Uses & Trusts 253; Digby, Hist. Real Prop. 367, note 1. 1 Cruise's Dig. tit. 12, c. 1, Sec. 12 et. seq., Gratrex v. Hom-fray, 6 Adol. & Bl. 206; Clark's Appeal, 70 Conn. 195, 39 Atl. 155;
Kellogg v. Hale, 108 111. 164; Ure v. Ure, 185 111. 216, 56 N. E. 1087; Morton v. Barrett, 22 Me. 261, 39 Am. Dec. 575; Hutchins v. Hey-wood, 50 N. H. 491. Kay v. Scates, 37 Pa. St. 31, 78 Am. Dec. 399; Sprague v. Sprague, 13 R. I. 701; Blount v. Walker, 31 S. C. 13 9 S. E. 804; Hooberry v. Harding, 10 Lea (Tenn.) 392. As to the original reason for the exception of the active use from the operation of the statute, see a suggestive note in 17 Mich. Law Rev. at p. 87, apparently by Professor E. N. Durfee.
In Pennsylvania, there has been shown an occasional disposition, it seems, to treat as passive, and so, as executed by the statute, some trusts or uses which in other jurisdictions are regarded as active, and, on the other hand, to treat as active some which are regarded elsewhere as passive. 2 Pomeroy, Eq. Jur. Sec. 986; Bis-pham, Equity Sec. 55, Kay v. Scates, 37 Pa. St. 31, 78 Am. Dec. 399, and note.
356 Seal Property. [ Sec. 102 named,59 or to apply them to another's maintenance,60 or even merely to protect estates in the property from sale or destruction.61 But a grant to one to permit or suffer another to occupy the land, or to receive the rents and profits, does not impose any such active duty as will prevent the execution of the use,62 though the case is different if the "net" or "clear" rents are referred to; these adjectives indicating that the legal grantee is to pay any necessary charges, and pay over the balance to the beneficiary.63
- Separate use of married women. On the principle, it appears, that one to whom property is conveyed or devised for the separate use of a married woman64 has a quasi active duty to perform in protecting it from the husband and the husband's creditors, and also from a desire not to defeat the purpose of such a limitation by vesting the legal title in the married woman, it has almost universally been considered that the statute does not apply to such a case.65 But oc59. Jones v. Say, 1 Eq. Cas. Abr. 383; Hutchins v. Heywood, 50 N. H. 500; Ware v. Richardson, 3 Md. 505, 558. Lummus v. Davidson, 160, N. C. 484, 76 S. E. 474; Rife v. Geyer, 59 Pa. St. 393, 98 Am. Dec. 351.
60. 1 Perry, Trusts, Sec. 305; Shelley v. Edlin, 4 Adol. & E. 582.
61. Van der Heyden v. Cran-dall, 2 Denio (N. Y.) 9, aff'd 1 N. Y. 491; Kay v. Scates, 37 Pa. St. 31, 78 Am. Dec. 399; McCaw v. Galbraith, 7 Rich. Law (S. C.) 74; People's Loan & Exchange Bank v. Garlington, 54 S. C. 413, 71 Am. St. Rep. 800; Hart v. Bay-liss, 97 Tenn. 72, 36 S. W. 691.
62. Broughton v. Lamgley, 2 Salk. 679, 2 Ld. Raym. 273; Up-ham v. Varney, 15 N. H. 467; Ramsay v. Marsh, 2 McCord (S.
C.) 252, 13 Am. Dec. 717.
63. Barker v. Greenwood, 4 Mees & W. 421; White v. Parker, 1 Bing, N. C. 573.
64. See post Sec. 206.
65. Cornish, Uses, 57, 59; 1 Perry, Trusts Sec. 310; Harton v. Harton, 7 Term. R. 652; Bowen v. Chase, 94 U. S. 812, 24 L. Ed. 184; Frey v. Allen, 9 App. D. C. 400; Dean v. Long, 122 111. 447, 14 N. E. 34; Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762; Ayer v. Ayer, 16 Pick. (Mess.) 327; Moore v. Stinson, 144 Mass. 594, 12 N. E. 410 Walton v. Drumtra, 152 Mo. 489, 54 S. W. 233; Pitts-field Sav. Bank v. Berry, 63 N. H. 109; Pullen v. Reanhard, 1 Whart. (Pa.) 514; Steacy v. Rice 27 Pa. St. 75, 67 Am. Dec. 447; Escheator of St. P. & St. M. v. Smith, 4 Mccasionally, since the passage of statutes giving the wife full control of her property, and freeing it from the control of her husband, it has been decided that the reason for the rule no longer exists, and that the statute will execute the use, it not involving active duties on the part of the trustee.66