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 .
At common law one could not create an estate of freehold in one person and provide that upon a certain event the seisin should shift from that person to another, as, for instance, by a feoffment to A in fee simple and upon his marriage to B in fee simple; or to A in fee simple or for life, and upon B paying a sum of money, to B in fee simple.
88. See Hayes, Limitations, 63.
89. Pybus v. Mitford, 2 Lev. 75, 1 Vent. 372; Bacon, Statute of Uses, 63; Sanders, Uses, (5th Ed.) 143; Hayes, Limitations, 64 et seq Article by Mr. Challis, Law Quart. Rev. at p. 412 et seq.
89a. Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; Abbot v. Holway, 72 Me. 298; Sabledowsky v. Ar-bucle, 50 Minn. 475, 52 N. W. 920; See Wyman v. Brown, 50 Me. 159; Savage v. Lee, 90 N. C. 320; Gray, Perpetuities, Sec.Sec. 67, 68.
Such limitations did not involve an abeyance of the seisin, but they would, if given effect, involve a transfer of the seisin without the ceremony recognized as requisite for this purpose.90 By means of the Statute of Uses, however, this can be done. Thus, one may convey land to the use of A and his heirs, and, if A fails to pay a certain sum to B at a certain time, then to the use of B and his heirs. In such case, the use in A will draw to him the legal title by force of the statute, until the shifting of the use to B, by reason of failure to pay such sum, in which case the legal title will also pass to B. If the conveyance is one operating under the Statute of Uses, such as a bargain and sale, being in terms a grant to A and his heirs, and, in case A fails to pay a certain sum to B at a certain time, then to B, a use is raised by the payment of the consideration, which will shift in accordance with the declaration in the conveyance, and draw the legal title to B on the satisfaction of the condition.91 In such case the condition is a condition precedent to the commencement of B's estate, and not a condition subsequent annexed to A's estate. If it were a condition subsequent no person but the grantor or his heirs could assert it. A 's estate comes to an end, not as being subject to a condition subsequent, but because another estate has come into existence which, by the terms of the creation of A's estate, is to displace the latter. A use which thus takes effect in substitution for or defeasance of an estate previously created by the same instrument is termed a "shifting to come into existence. Opposed to such a view, however, are occasional dicta that a use to a person not in esse cannot be raised by a bargain and sale, for the reason that no consideration can move from such a person.96 These dicta are, however, questioned by a modern writer of high standing,97-98 who forcibly contends that since a use may be raised by bargain and sale in favor of one other than the person paying the consideration,99 there is no reason whatsoever that it should not be so raised in favor of one not in esse. And he calls attention to the apparently analogous case of a covenant to stand seised, which may validly operate in favor of relatives not in existence or not ascertained. But in accordance with the dicta referred to are various modern decisions2-5 that a conveyance inter vivos in favor of persons not yet ascertained or in existence is invalid, if not by way of contingent remainder, as is the ordinary assumption that, in the case of a conveyance to A and his children, in so far as it is intended to make A and his children cotenants, only those children can share as such who are in being at the time of the execution of the conveyance, and that, in order to enable subsequently born children to share, it is necessary to create a trust.6
90. 1 Sanders, Uses & Trusts, (5th Ed.) 150; 1 Hayes, Conveyancing, 19.
91. Sugden's Gilbert, Uses, 152; Williams, Real Prop. 378 et seq: 4 Kent, Comm. 296, 298. There are in the state of Illinois a line of dicta to the effect that a fee can be limited on a fee only by executory devise. See, e. g.. Strain v. Sweeny, 163, 111. 603; Kion v. Kion, 195 111. 181; Johnson v. Buck, 220 111. 226, 77 N. E. 163. But in Stoller v. Doyle, 257 111. 369, 100 N. E. 959, it is explicitly stated that it can, by the force of the Statute of Uses, be done by a conveyance inter vivos.