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 .
- Uses in chattel interests. A second class of uses not executed by the statute consists of those declared on a term of years or other chattel interest, since the statute expressly states that, to bring it into operation, one person must be "seised" to the use of another, and this word applies only to one having a freehold estate. Accordingly, if A holds land for a term of years to the use of B, since A has merely a chattel interest, the statute does not apply, and the term of years remains in A.67 But if a person is seised of an estate of freehold to the use of another for a term of years the statute does apply; for instance if A seised in fee simple holds to the use of B for years, the statute executes the use in favor of B.68
Cord (S. C.) 452. Temple v. Ferguson, 110 Tenn. 84, 100 Am. St. Rep. 791, 72 S. W. 455; Compare Williams v. Waters, 14 Mees & W. 166; Marvel v. Wilmington Trust Co. (Del. Ch.), 87 Atl. 1014; Nightingale v. Hidden, 7 R. I. 115.
In Pennsylvania it is held that, in the case of a trust for the separate use of a woman, if she is not married, or the declaration is not made in contemplation of immediate marriage, the use is executed, even though active duties are imposed. In re Ogden's Appeal, 70 Pa. 501; Kuntzleman's Estate, 136 Pa. St. 142, 20 Am. St. Rep. 909, 20 Atl. 645; 2 Pomeroy, Eq. Jur. Sec. 986, note; Bispham Equity, Sec. 55.
66. Sutton v. Aiken, 62 Ga. 733.
Heath v. Miller, 117 Ga. 754, 44 S. E. 13; Adams v. Adams, 21 Ky. L. Rep. 1756. 56 S. W. 151; Snell v. Payne, 25 Ky. L. Rep. 1836, 78 v. Scott, 38 S. C. 34, 16 S. E 185. S. W. 885; Georgia, C. & N. Ry. Co.
67. Bacon, St. Uses, 42; 1 Sanders, Uses & Trusts, 275; 1 Cruise's Dig. tit. 12, c. 1, Sec. 34 1 Perry, Trusts, Sec.Sec. 303, 311; Williams v. McConico, 36 Ala. 22; Ure v. Ure, 185 111. 216, 56 N. E. 1087; Denton's Guardians v. Denton's Ex'n 17 Md. 403. Hooper v. Feigner, 80 Md. 262, 30 Atl. 911; Slevin v. Brown, 32 Mo. 176; Ramsay v. Marsh, 2 McCord ( S. C.) 252, 13, Am. Dec. 717.
68. 2 Sanders, Uses & Trusts, 61.
In fact, as shown above, the conveyance by lease and release is based on the execution of a use for years.
- Use to legal grantee. A use limited to the grantee of the legal estate was not regarded as within the statute, which applied in terms to cases where one person was seised to the use of "another" person. So, on a conveyance to A and his heirs to the use of A and his heirs, A takes the legal estate by the common law, without reference to the Statute of Uses, and he also has the use therein, the declaration of the use merely serving to rebut any presumption of a resulting use in favor of the grantor, and also serving, on occasion, to limit the estate taken by the grantee.69 If, however, there be some person named in the declaration of the use who is not named in the grant, as in the case of a conveyance to A to the use of A and B and their heirs, the Statute of Uses applies, and the use is executed, in the above case, for instance, in A. and B.70 And the statute also applies, by explicit provision to that effect, when the conveyance is in terms to the use of two or more persons, and the declaration of use is not in favor of them all, as for instance, in the case of a conveyance to A and B and their heirs, to the use of A, or a conveyance to A, B and C and their heirs, to the use of A and B.
The rule, above referred to, that in the case of a grant to A to the use of A, he takes by the common law and not under the statute, had important results before the requirement of words of inheritance for the creation of a fee simple estate was abolished by statute.71 Otherwise it would have resulted, by reason of the rule that the legal estate executed in the cestui que
69. 1 Sanders, Uses & Trusts, 89; Meredith v. Joans, Cro. Car. 244; Orme's Case, L. R. 8 C. P. 281, Peacock v. Eastland, L. R. 10 Eq. 17, Savill Brothers, Ltd. v. Bethell  2 ch. 523. See Lloyd v.
Passingham, 6 Barn. & C. 305.
70. Sammes' Case, 13 Coke, 54; Williams, Settlements, 5. Lowcock v. Overseers of Broughton, 12 Q. B. D. 369.
71. Ante Sec. 21 (a).
Sec. 102 ] Equitable Ownership, 359
Use cannot be greater than that which was created in favor of the feoffee to uses,72 that in the case of a conveyance to A to the use of A and his heirs,a not uncommon form of limitation, A would take a life estate only. Since the abolition of the requirement of words of inheritance in the creation of an estate in fee simple, the rule that, in the case referred to, the conveyance takes effect at common law, appears to have but little practical importance.73 And it is said that in some cases, where there is "a direct impossibility or impertinency for the use to take effect by the common law," the rule referred to has no application.74
- Use upon a use. Another case in which the use is not executed by the statute is that of a use limited upon a use. Thus, in the case of a feoffment to A and his heirs, to the use of B and his heirs, to the use of C and his heirs, the first use is executed by the statute in B, he thus acquiring the legal title, while the second use, to C, is not executed.75
72. Ante Sec. 99 note 28.
73. The rule may determine whether two or more grantees named in a conveyance take as joint tenants or tenants in common. Orme's Case L. R. 8 C. P. 281.
74. See Bacon, Uses 63, 1 Sanders, Uses & Trusts 92, Challis, Real Prop. 390, where examples of such exceptional cases are enumerated.
75. 1 Sanders, Uses & Trusts, 275; 1 Perry, Trusts, Sec. 301, 304; Durant v. Ritchie. 4 Mason 65, Fed. Cas. No. 4,190; Croxall v. Shererd, 5 Wall. (U. S.), 268; 18 L. Ed. 572; Reid v. Gordon, 35 Md. 183; Brown v. Renshaw 57 Md. 67, 76: Guest v. Farley, 19 Mo. 147: Hutchins v. Heywood 50 N. H. 491. Ramsay v. Marsh, 2 Mc-Cord (S. C.) 252, 13 Am. Dec. 717;
Blount v. Walker, 31 S. C. 13.
This doctrine of the nonexe-cution of a use upon a use, enunciated in Tyrrel's Case, Dyer, 155a has been the subject of constant animadversion, as being utterly illogical. Mr. Joshua Williams, in his work on Real Property, adopting Mr. Watkins' remark, that "it must. have surprsed every one who was not sufficiently learned to have lost his common sense." The doctrine has, however, been more recently explained by Prof. J. B. Ames (4 Green Bag, 81, article reprinted in 21 Harv. Law Rev. 270), Lectures on Legal History 243, in such a way as to give it a more logical appearance, it being shown by this learned writer that, even before the statute, it was decided that, if one bargained and was decided not to apply to uses and confidences involving active duties on the part of the grantee, uses declared on a term of years, and uses upon a use.79 These uses and confidences not executed by the statute were recognized by the court of chancery, either immediately after the passage of the statute, or at a later period,80 as being still within its jurisdiction, and they have since been administered in equity under the name of "trusts" upon the same equitable principles as were applied to uses before the statute, but with a more extensive application. Trusts are, generally speaking, the same as uses before the statute, but the analogy may, if pushed too far, cause confusion, and it is important to bear in mind that between uses as they have been recognized since the statute by courts of law. merely for the purpose of being executed, and uses not executed, and therefore recognized in equity under the name of "trusts," there is, at most, a merely superficial resemblance.
[ Sec. 103
On the same principle, in the case of a bargain and sale to A with a declaration of a use to B, the use raised in A by the giving of consideration is executed in him by the statute, while the use expressly declared remains unexecuted.76
Even where the first use is to the feoffee himself, as in the case of a conveyance to A and his heirs, to the use of A and his heirs, to the use of (or in trust for) B. though the first use is not executed, A being in by the common law,77 a use exists in A, and the use in B is a use upon a use, and consequently the legal estate is not executed in B.78