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 .
Upon the first introduction into England of the doctrine of uses, and for a considerable period thereafter, the beneficiary of the use, called later the cestui que use, had no specific
1. 2 Pollock & Maitland, Hist. Eng. Law, 228, 236; article on "Early English Equity" by Hon. 0. W. Holmes, in 1 Law Quart. Rev. 162. For the view which formerly prevailed, see 2 Blackst. Comm. 328; 4 Kent, Comm. 290; 1 Spence, Eq. Jur. 435.
The word "use" is derived, not from the Latin "usus," but from the phrase "ad opus," meaning on behalf of, or for the profit or advantage of. The word "opus" became in old French "os" or "oes." 2 Pollock & Maitland, Hist. Eng. Law, 226; Maitland, Equity, 24; 26 Law Quart. Rev. at p. 196.
2. Pollock & Maitland, Hist. Eng. Law, 229, 235.
3. Post Sec. 596.
4. Stat. 50 Edw. 3, ch 6.
5. Stat. 15 Rich. 2, c. 5.
Sec. 95] Equitable Ownership, 341 legal remedy whereby to compel the person seised of the land, the fro/fee to uses, to carry out the terms of the conveyance, but was to a great extent dependent on the good faith of the latter.6 At the time, however, that such conveyances to uses were becoming general, the jurisdiction of the chancellor as a judicial officer, giving relief outside the ordinary rules of law, was increasing in importance, and it was but natural that cestuis que use should have recourse to this officer for relief, which he might naturally be inclined to give, it being his duty, as an ecclesiastic, to enforce moral obligations. and his system of procedure, more flexible than that of the common-law courts, and independent of a jury, being well fitted to aid him in determining the real purpose of a transfer of land. Accordingly, in the first half of the fifteenth century, his jurisdiction to give relief against a feoffee to uses who failed to comply with the terms of the conveyance to him seems to have become firmly established, and the rules in regard to the grant of such relief regularly systematized.7
While the courts of law took no notice of the cestui que use, treating him, even when in possession, as a mere tenant at will, and regarding the feoffee to uses as exclusively the tenant of the land for all purposes, ho being the one who owed the feudal services, on whose death without heirs the estate escheated, and who alone had the power to alien the land by legal conveyance, the court of chancery, on the other hand, regarded the cestui que use as the real owner of the property, compelling payment to him by the feoffee of the rents and profits, allowing him to call on the feoffee to convey the land to whomever he might name, and requiring the feoffee to defend the title, and re-enter or bring an
6. 2 Pollock & Maitland, Hist. Eng. Law, 229; Williams, Real Prop. (21st Ed.) 170; Digby, Hist. Real Prop. (4th Ed.) 318; 1 Cruise, Dig. tit. 11, c. 1, Sec. 11.
7. 1 Spence, Eq. Jur. 442; Digby, Hist. Real Prop. 322; Prof. J. B. Ames, 21 Harv. Law Rev p. 265, Lectures on Legal History, action in case of disseisin by a third person, in order to protect the interests of the cestui que use.8