This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
The rules of common law as to dealings with and rights in land, and the means by which it could be recovered, were very strict; for the common law courts followed precedents and refused to recognize any new rights or any new form of dealing with land.
Thus, as we have seen, at common law land could not be given by will, but a means was invented by which testators conveyed their lands to a friend under a trust (a). The common law courts refused to recognize a will made in this form and refused to recognize the trust. Consequently if the friend denied the trust and claimed to hold the land for his own benefit, the testator or the persons interested under his will had no remedy in the courts of law.
At first the only remedy for a person who was aggrieved by this harshness of the common law was to appeal to the King. As these appeals became more numerous, the King referred them to the Chancellor, who was formerly the King's chaplain and secretary and as such the keeper of his conscience. In course of time these appeals became too numerous for the Chancellor, and a separate department or Court of Chancery was established to deal with cases where the common law gave no remedy.
(a) See p. 21.
The most important of these were cases where a person had refused to recognize a trust imposed in him. The Chancery Court compelled him to perform the trust and would in other respects enforce equitable or moral claims not recognized by the common law.
The Court of Chancery could not alter the common law, but it could prevent a person from exercising his common law rights, where it was inequitable that he should do so (b).
Thus, in the case of a will made by a conveyance to a friend as trustee, if the friend or trustee wished to deny the trust and claim the land for himself he could get possession of the land from the persons entitled under the will, by an action of ejectment at Common Law. But the person entitled under the will could apply to the Court of Chancery, and that Court would grant an injunction, preventing the trustee from relying on his rights at common law.
This naturally gave rise to disputes between the Courts of Common Law and Equity. The final dispute arose between Lord Chief Justice Coke and Lord Chancellor Ellesmere, and was decided by James I. in favour of the Chancellor. Consequently the rule of equity prevails and the legal right may be made an empty or bare right with no beneficial enjoyment attached to it.
Thus, if land was granted to one person in trust for another, though the trustee (i.e. "the person trusted") had the legal estate, yet the person in whose favour the trust was created or cestui que trust (= "he for whom is the trust") could enforce the trust against him.
A person for whom land was held in trust had therefore the whole benefit of the fee simple and was said to have an equitable estate in fee simple.
(b) This jurisdiction was very similar to that exercised by the praetor in Rome. The praetor could not alter the jus civile, hut he could modify its effect.
Equitable estates were created chiefly in cases where a conveyance at law was impossible.
(1) To avoid services due to the lord.
Thus, if B held land of A, who held of the Crown, B could convey his land to C and his heirs "in trust for" or "to the use of" or "in confidence for" himself (B) and his heirs. Then C held the land at law as tenant in fee simple of A, but he held the benefit of the land in trust for B. Thus -
Hence, if B died without heirs or committed felony, there would be no escheat or forfeiture to A, for escheat and forfeiture were legal rights attached to the legal estate. But suppose C were to die without heirs, the land would at law be forfeited to A; but A would hold only the legal estate, bound by the same trust - namely, a trust of the whole fee simple for B.
(2) To convey lands into Mortmain.
As we have seen, land could not legally be conveyed to corporations. Thus, if A wished to grant lands to a monastery, to get over the difficulty A would convey his land "to B and his heirs to the use of the monastery of - ." B took the legal estate, but the monastery became beneficially entitled.
(3) To make a will. As we have seen above (p. 21). (4) To convey land to himself or his wife.
A man could not convey land to himself, for this was to do nothing, and was therefore useless. And he could not even ' convey land to himself and another as joint tenants (c). Similarly, a man could not convey land to his wife, for "husband and wife are one in law," and it was therefore merely a conveyance to himself. Thus, if A wished to convey land to his wife, he conveyed it "to B and his heirs to the use of my wife and her heirs."
In these cases B is called the "feoffee to uses" and the person who gets the use is called "the cestui que use."
(5) To escape Dower.
As will appear hereafter, the wife of a tenant in fee simple obtained an indefeasible right to one third of her husband's lands after his death, and this right attached immediately he acquired the land; he could not even sell it, except subject to her right to "dower." Hence, if A (a husband) was buying land he usually had it conveyed "to B, C, and D and their heirs to the use of A and his heirs."
Dower did not attach to a joint estate, and therefore, if B, C, or D died, their widows did not get dower, and if A died his widow could not claim dower because A had no estate at law.
Thus uses became so common that if A granted land to B, and did not mention any use, it was presumed that B held it for the use of A; this was called a resulting use.
But if B paid purchase money for the conveyance, it was naturally presumed that B was to have the use himself.