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 .
- (a) General considerations. The Statute of Uses, as previously stated, sold land to another to the use of the bargan- the use declared was void. a repugnant to that raised by the consideration; and so, after the statute, the second use was considered as merely repugnant to the first use. This view is adopted in the later editions of Williams on Real Property by the learned editor, Mr. T. Cyprian Williams.
76. Tyrrel's Case, Dyer, 155a, Croxall v. Shererd, 5 Wall. (U. S.) 268; Martling v. Martling, 55 N. J. Eq. 771, 780, 18 L. Ed. 572. Durant v. Ritehie, 4 Mason, 45, 66, Fed. Cas. No. 4,190; Nelson v. Davis, 35 Ind. 474; Guest v. Parley, 19 Mo. 147.
In Massachusetts it has been decided that a conveyance in form one of bargain and sale to A. and his heirs to the use of B and his heirs, may be considered a feoffment to A to the use of B, so that the use will be executed in B, if this is apparently the intention of the parties. Thatcher v. Omans, 3 Pick. (Mass.) 521; Carr v. Richardson, 157 Mass. 576, 32 N. E. 958; Durant v. Ritchie, 4 Mason, 45, 71, Fed. Cas. No. 4,190. In Illinois, the same effect is given to the conveyance, it seems, even apart from the question of intention, by force of the statute in regard to conveyances. Witham v. Brooner, 63 111. 344. Likewise in Maryland a conveyance in appropriate terms will be treated as a deed of feoffment or of bargain and sale as will best subserve the purposes of the parties. Handy v. McMekim, 64 Md. 560, 4 Atl. 125; Rogers v. Sisters of Charity of St. Joseph, 97 Md. 550, 55 Atl. 318.
77. Ante, this section, note 69.
78. Lloyd v. Passingham 6 Barn. etc. 305; Whetstone v.
A trust in land exists when one having an estate in the land is subject to an obligation to hold or deal with the land or the proceeds thereof for the benefit of some other person, or of several persons, of whom he may or may not be one.81 The person subject to the obligation is known as the trustee, and the person or persons entitled to the benefits thereof as the cestui or cestuis que trust.
Bury, 2 P. Wms. 146, 1 Sanders, Uses & Trusts, 89; Prof. J. B. Ames in 21 Harv. Law Rev. at p. 271, Lectures on Legal History, 244.
79. See ante Sec. 99. The case of a use to the legal grantee, though not within the operation of the statute, is not a trust, since one cannot, without the joinder of any other person, be a trustee for himself, but the grant of the use merely, as before stated, confers the beneficial interest on him. Ante note 69.
80. A use upon a use, though excluded by the courts of law from the operation of the statute by the decision in Tyrrel's Case, rendered but a few years after its passage, was, in the view of Prof. Ames, not recognized and enforced by chancery until the reign of Charles I; the earliest reported instance of the support of a use upon a use being Sambach v. Dalston, Toth. 189. See article 4 Green Bag, 81; reprinted in 21 Harv. Law Rev. 270; Ames Lectures on Legal History, 243.
81. Adapted from the definition in Underhill, Trusts.
In the great majority of cases the trustee has the legal title to the land, that is, he has a legal as distinguished from an equitable estate therein. This is not, however, invariably the case. For instance, in jurisdictions where the mortgagee has the legal title,82 the owner of the "equity of redemption," so called, may create a trust in the land, and in any jurisdiction one who is himself a cestui que trust may create a trust in favor of another, a "sub-trust," as it has been conveniently termed,83 the result of which is indirectly to transfer to such other the benefit of the original trust.
- (b) The nature of the cestui's rights. The interest of a cestui que trust is defined, in reference to quantum or duration, by the same measures of limitation as apply to legal estates, being in fee simple, fee tail, for life, or for years, and is usually referred to as an "equitable estate," of which the cestui que trust is quite frequently said to be "seised."84 But the question whether a cestui que trust is, strictly speaking, the owner of an estate in the land, whether, in other words he has rights in rem therein, available against the world at large, or has merely rights in personam, available against a definite person or persons, is one on which conflicting views have been expressed by writers of authority.85
82. Post, Sec. 600.
83. See article by Professor J. B. Ames on "Purchase for value Without notice" in 1 Harv. Law-Rev, at p. 11, reprinted in Lectures on Legal History, 363; 28 Halsberry's Laws of England p. 6 note (i), Underhill, Trusts (7th Ed.) 2, 6.
84. See Leake, Prop. in Land,
126; 1 Hayes, Conveyancing (5th Ed.) 98; Williams, Real Prop. (21st Ed.) 181; 1 Perry, Trusts, Sec. 357; 12 Law Quart. Rev. 247.
85. Among the works in which the view has been expressed that the rights of the cestui are rights in personam rather than in rem, are Ames, Cas. Trusts, c. 2, Sec. 2; Lewin, Trusts, Introduction; MaitSec. 103 ]
That a trust, or rather its predecessor, a use, originally involved merely rights in personam in favor of the cestui is not questioned, but recent writers have taken the view that, in the gradual course of its development, the use or trust has assumed characteristics which can be explained only on the theory that the cestui has something more than a mere personal right, or aggregate of personal rights, against the trustee, that he is indeed an owner of the land, even though the trustee is also regarded as an owner.86 In support of this view reference has been made to the following considerations, as being more or less incompatible with the theory that the cestui has merely a personal right against the trustee in regard to the land. The cestui's rights are effective as against the heir of the trustee, as against his transferee, if not an innocent purchaser for value, and also as against the trustee's crditors.87 A modern English case,88 indeed, gives reason to suppose that, in that jurisdiction, a trust might be enforced even as against one who disseises the trustee. Furthermore the trustee's widow is not entitled to dower, while the cestui's widow is ordinarily so entitled,88a and the surviving husband of the cestui is entitled to curtesy.89 The cestui's interest is ordinarily assignable, passes to land, Equity, passim, Williams, Real Prop. (21st Ed.) 182; Lang-dell, Brief Survey of Equity Jurisdiction. 5,-1 Harv. Law Rev. 59. This view was expressed by the present writer in the first edition of this work.