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.
This was due to the decision of the courts of law in
Jane Tyrrel's Case (1557), Dyer, 155.
Jane Tyrrel, in consideration of £100 paid by her son G, granted land to her son G, to the use of herself for life, etc.
Thus there were two uses - (i.) the use implied in favour of G by reason of his paying the purchase money (see p. 63).
And (ii.) the use expressed in favour of Jane Tyrrel. The question was, which of these uses was "executed," i.e. turned into the legal estate by the statute.
Held, the statute operates on the first use, and any use following upon the first use is void at law. Therefore Jane took nothing.
The effect of this case is often summarised by saying that Tyrrel's case decided that "there cannot be a use upon a use,"
Thus the courts of law again refused to enforce a use or trust which had been declared by the grantor.
The Court of Chancery again stepped in and enforced the second use, holding that the intention must have been that the second use should have some meaning.
Thus it was held in Chancery that if lands were granted " to A to the use of B to the use of C," the first use was intended to pass the legal estate by means of the Statute of Uses, and that the second use was meant to pass the beneficial interest or equitable estate.
Thus equitable estates again came into existence and are used largely at the present day. The equitable estate being created by means of two uses or trusts. The first being given to the Trustee, the second to the person to be benefited.
Thus if it is desired to grant land to T as trustee for A, it is granted "to B to the use of T in trust for A."
The words "use" and " trust" have exactly the same meaning, but it is usual to refer to the first as a " use " and the second as a "trust. The effect of this is that T gets the legal estate by virtue of the Statute of Uses, and A gets nothing at law, but equity gives A the equitable estate.
B gets nothing at all - he is merely a "conduit pipe" for the passage to T of the legal estate.
It is usual now to omit the feoffees to uses and grant the land "unto and to the use of T in trust for A," i.e. unto T and to the use of T in trust for A. The effect is the same.
Equitable estates are governed by the same rules as legal estates with certain exceptions.
Thus it is possible to create equitable estates in fee simple, or in tail, or for life, or years, etc., and the same rules apply; for instance, equitable estates in fee simple descend in the same way as legal estates.
Equitable estates tail are barred by deed enrolled. But there are some exceptions.
(1) Equitable estates in fee simple may be created or granted by a document in writing, and not necessarily by deed.
The writing is required by the Statute of Frauds (see p. 77). The deed is required in case of legal estates by an Act of 1845 (see p. 78). By this Act a conveyance not under seal is void at law, but it remains valid in equity.
(2) Words of limitation are not absolutely necessary to convey a fee simple in equitable estates.
For although the simple grant of an equitable estate to a person without words of limitation will only give him a life estate, yet if the deed shows an intention to pass the whole estate of the grantor, the whole fee simple will pass.
Re Tringham's Trusts,  2 Oh. 487. Copyhold lands were limited to C and T and their heirs in trust for M for life and her husband for life, and after the death of both to the children of the marriage (without the words "and their heirs"), and in default of such issue to other persons.
Held, the gift over on failure of the issue showed a clear intention that the children were to take the fee simple (e).
(3) Escheat. At one time, if the tenant in fee simple of an equitable estate died intestate and "without heirs, the land remained vested in the trustee free from the trust: but now by the Intestates Estates Act, 1881 (f), equitable estates escheat to the lord in the same way as legal estates.
Burgess v. Wheate (1759), 1 Eden. 177.
B, who held of the Crown, granted land "unto and to the use of Trustees and their heirs in trust for himself (B) and his heirs." B died intestate and without heirs. Held (before 1884), the Crown cannot claim the land from the Trustees.
Since 1881 they would hold it in trust for the Crown.
(4) An equitable estate may be destroyed by a conveyance of the land by the person who has the legal estate to another person if that other is. a bona fide purchaser without notice of the trust.
Thus, in the last case, suppose the trustees who had the legal estate during the life of B had conveyed the land to P. The common law courts would have held that P was entitled to the land. Equity, however, would enforce the trust in favour of B against P if he had notice of it: for it would be inequitable to allow P to buy a trust estate, and then disregard the trust. But if P when he bought the land had no knowledge of, and no reason to suspect that there was a trust it would not be equitable to make P carry out the trust. Consequently the following rule now applies in all courts since 1875.
If a trustee having the legal estate conveys the land to a bond fide purchaser for value who has
(e) Followed - Re Oliver's Settlement (1905), 1 Ch. 191. The decision in re Irwin (1904), 2 Ch. 752, if it is reconcilable with these two cases, seems to decide that the gift to the trustees, even if it is only an equitable interest that is settled, must contain words of limitation.
(f) 47 & 48 Vict. c. 71.s. 4.
no notice of the trust, the land is freed from the trust, and the only remedy of the cestui que trust is to sue the trustee for damages for breach of trust.
This doctrine only applies where the trustee has the legal estate.
A purchaser will be bound by the trust if he has "Constructive notice"" of the trust.
That" is to say, if P did not know of the trust, but either knew of some fact which seemed to suggest that there might be a trust, and refrained from further inquiry; or if he did not make the proper investigation of the title, which would have disclosed the trust, he is bound by it (g).
A purchaser is bound by every trust which he would have discovered if he had been both careful and honest.