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 .
The ordinary and simplest method of creating a use was by a feoffment to A. and his heirs for the use of B. and his heirs. Likewise, a use could be raised by the levy of a fine or the suffering of a recovery to a particular use, these being, as stated before, collusive judicial proceedings resulting in a transfer of title. By these modes of conveyance, the seisin was transferred, and the use was then said to be created by a conveyance operating by "transmutation of possession."18
Besides these methods of creating a use by an expression of intention that the donee should hold the
14. Bacon, St. Uses, 20; Co. Litt. 111b, Butler's note; Sugden's Gilbert, Uses, 70; Digby, Hist. Real Prop. 328; 1 Cruise, Dig. tit. 11, c. 2, Sec. 36.
15. See Post, Sec. 156.
16. Sugden's Gilbert, Uses,
152; Butler's note to Fearne, Cont. Rem. 383.
17. Sugden's Gilbert, Uses, 158; Chance, Powers, 5.
18. Sugden's Gilbert, Uses, Introduction, and Chapter 1, Sec. 5; Digby, Hist. Real Prop. 326.
[ Sec. 98 land to certain uses, an intention to that effect was sometimes implied by the chancellor. This was done when a feoffment or other conveyance was made without any consideration being given, and also without any declaration of use, it being assumed in such a case that the intention of the grantor was that the donee should hold the land, not for his own benefit, but for the use and benefit of the donor, the use being then said to "result" or come back to the donor. This class of uses received the name of "resulting uses."19 If, however, the use was actually declared, then such express declaration was allowed to prevail, and the payment or nonpayment of consideration was immaterial in determining the destination of the use.20
An intention to create a use was also implied by the chancellor in the case of a "bargain and sale." A bargain and sale was a transaction of the following nature: If the owner of land made an agreement with a purchaser for the sale to the latter of an estate or interest in the land, and the purchaser paid a pecuniary consideration therefor, but no legal conveyance was made, chancery regarded the vendor as seised of the legal estate merely for the use and benefit of the vendee in accordance with the terms of the agreement.21