chosen on account of his rank and station, which would enable him to defy the common law and protect the estate of his cestui que use, or the person entitled to the beneficial enjoyment. The act of 1 Ric. II. c. 9 was directed against the choice of such persons. This alienation of land in use was looked upon with great disfavour by the common law courts, in whose eyes the cestui que use was only a tenant at will. Possibly the ground of their refusal to recognize uses was that the assizes of the king's court could only be granted to persons who stood in a feudal relation to the king. The denial of the right followed the denial of the remedy. The use was on the other hand supported by the court of chancery, and execution of the confidence reposed in the feoffee to uses was enforced by the court in virtue of the general jurisdiction which as a court of conscience it claimed to exercise over breach of faith. Jurisdiction was no doubt the more readily assumed by ecclesiastical judges in favour of a system by which the Church was generally the gainer. A double ownership of land thus gradually arose, the nominal and ostensible ownership—the only one acknowledged in the courts of common law—and the beneficial ownership protected by the court of chancery. The reign of Henry V. to a great extent corresponds with that of Augustus at Rome, as the point of time at which legal recognition was given to what had previously been binding only in honour. The means of bringing the feoffee to uses before the court was the writ of subpoena, said to have been invented by John de Waltham, bishop of Salisbury and master of the rolls in the reign of Richard II. By means of this writ the feoffee to uses could be compelled to answer on oath the claim on his cestui que use. The doctrine of the court of chancery as to the execution of a use varied according as there was transmutation of possession or not. In the former case it was unnecessary to prove consideration; in the latter, generally a case of bargain and sale, the court would not enforce the use unless it was executed in law that is, unless there was a valuable consideration, even of the smallest amount. Where no consideration could be proved or implied, the use resulted to the feoffor. This theory led to the insertion in deeds (especially in the lease of the lease and release period of conveyancing) of a nominal consideration, generally five shillings. Lands either in possession, reversion or remainder could be granted in use. Most persons could be feoffees to uses. The king and corporations aggregate were, however, exceptions, and were entitled to hold the lands discharged of the use. On the accession of Richard III., who from his position of authority had been a favourite feoffee, it was necessary to pass a special act (1 Ric. III. c. 5), vesting the lands of which he had been feoffee either in his co-feoffees or, in the absence of co-feoffees, in the cestui que use. The practical convenience of uses was so obvious that it is said that by the reign of Henry VII. most of the land in the kingdom was held in use. The freedom of uses from liability to forfeiture for treason must have led to their general adoption during the Wars of the Roses.[1] The secrecy with which a use could be transferred, contrary as it was to the publicity required for livery of Seisin (q.v.) at common law, led to the interference of the legislature on several occasions between the reign of Richard II. and Henry VIII., the general tendency of the legislation being to make the cestui que use more and more subject to the burdens incident to the ownership of land. One of the most important statutes was the Statute of Mortmain (15 Ric. II. c. 5), forbidding evasion of the Statute De Religiosis of Edward I. by means of feoffments to uses. Other acts enabled the cestui que use to transfer the use without the concurrence of the feoffee to uses (1 Ric. III. c. 1), made a writ of formedon maintainable against him (1 Hen. VII. c. 1), rendered his heir liable to wardship and relief (4 Hen. VII. c. 17), and his lands liable to execution (19 Hen. VII. c. 15). At length in 1535 the famous Statute of Uses (27 Hen. VIII. c. 10) was passed.[2] The preamble of the statute enumerates the mischiefs which it was considered that the universal prevalence of uses had occasioned, among others that by fraudulent feoffments, fines, recoveries and other like assurances to uses, confidences and trusts lords lost their feudal aids, men their tenancies by the curtesy, women their dower, manifest perjuries in trials were committed, the king lost the profits of the lands of persons attainted or enfeoffed to the use of aliens, and the king and lords their rights of year, day and waste, and of escheats of felons' lands. To remedy this state of things it was enacted, inter alia, that, where any person was seised of any hereditaments to the use, confidence or trust of any other person by any means, the person having such use, confidence or trust should be seised, deemed and adjudged in lawful seisin, estate and possession of such hereditaments. Full legal remedies were given to the cestui que use by the statute. He was enabled to distrain for a rent-charge, to have action, entry, condition, &c. The effect of this enactment was to make the cestui que use the owner at law as well as in equity (as had been done once before under the exceptional circumstances which led to 1 Ric. III. c. 5), provided that the use was one which before the statute would have been enforced by the court of chancery. For some time after the passing of the statute an equitable as distinct from a legal estate did not exist. But the somewhat narrow construction of the statute by the common law courts in Tyrrel's case[3] (1557) enabled estates cognisable only in equity to be again created. In that case it was held that a use upon a use could not be executed; therefore in a feoffment to A and his heirs to the use of B and his heirs to the use of C and his heirs only the first use was executed by the statute. The use of B being executed in him, that of C was not acknowledged by the common law judges; but equity regarded C as beneficially entitled, and his interest as an equitable estate held for him in trust, corresponding to that which B would have had before the statute. The position taken by the Court of Chancery in trusts may be compared with that taken in Mortgage (q.v.). The Judicature Act 1873, while not going as far as the Statute of Uses and combining the legal and equitable estates, makes equitable rights cognisable in all courts. From the decision in Tyrrel's case dates the whole modern law of uses and trusts. In modern legal language use is restricted to the creation of legal estate under the Statute of Uses, trust is confined to the equitable estate of the cestui que trust or beneficiary.
Uses since 1535.—The Statute of Uses is still the basis of conveyancing. A grant in a deed is still, after the alterations in the law made by the Conveyancing Act 1881, made “to and to the use of A.” The statute does not, however, apply indiscriminately to all cases, as only certain uses are executed by it. It does not apply to leaseholds or copyholds, or to cases where the grantee to uses is anything more than a mere passive instrument, e.g. where there is any direction to him to sell the property. The seisin, too, to be executed by the statute, must be in another than him who has the use, for where A is seised to the use of A it is a common law grant. The difference is important as far as regards the doctrine of Possession (q.v.). Constructive possession is given by a deed operating under the statute even before entry, but not by a common law grant, until actual receipt of rent by the grantee. The operation of the Statute of Uses was supplemented by the Statute of Inrolments and that of Wills (see Will). The Statute of Inrolments (27 Hen. VIII. c. 16) enacted that no bargain and sale should pass a freehold unless by deed indented and enrolled within six months after its date in one of the courts at Westminster or with the custos rotulorum of the county. As the statute referred only to freeholds, a bargain and sale of a leasehold interest passed without enrolment. Conveyancers took advantage of this omission (whether intentional or not) in the act, and the practical effect of it was to introduce a mode of secret alienation of real property, the lease and release, which was the general form of conveyance up to 1845. (See Conveyancing.) Thus the publicity of transfer, which it was the special object of the Statute of Uses to effect, was almost at once defeated. In addition to the grant to uses there were other modes of conveyance under the statute which are now obsolete in practice, viz., the covenant to stand seised and the bargain and sale. Under the statute, as before it, the use has been found a valuable means of limiting a remainder to the person creating the use and of making an estate take effect in derogation of a former estate by means of a shifting or springing use. At common law a freehold could not be made to commence in futuro; but this end might be attained by a shifting use, such as a grant (common in marriage settlements) to A to the use of B in fee simple until a marriage, and after the celebration of the marriage to other uses. An example of a springing use would be a grant to A to such uses as B should appoint and in default of and until appointment to C in fee simple. The difficulty of deciding where the seisin was during the suspension of the use led to the invention of the old theory of scintilla juris, or continued possibility of seisin in the grantee to uses. This theory was abolished by 23 & 24 Vict. c. 38, which enacted that all uses should take effect by force of the estate and seisin originally vested in the person seised to the uses. The most frequent instances of a springing use are powers of appointment, usual in wills and settlements. There has been much legislation on the subject of powers, the main effect of which has been to give greater facilities for their execution, release or abandonment, to aid their defective execution, and to abolish the old doctrine of illusory appointments.
Trusts.—A trust in English law is defined in Lewin's Law of Trusts, adopting Coke's definition of a use, as “a confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in Chancery.” The term trust or trust estate is also used to denote the beneficial interest of the cestui que trust. The term truster is not used, as it is in Scotland, to denote the creator of the trust. A trust has some features in common with contract (q.v.); but the great difference between them is that a contract can only be enforced by a party or one in the position of a party to it, while a trust can be, and generally
- ↑ The use, as in later times the trust, was, however, forfeited to the Crown on attainder of the feoffee or trustee for treason.
- ↑ It was adopted in Ireland exactly a century later by 10 Car. I. c. 1 (Ir.). The law of uses and trusts in Ireland is practically the same as that in England, the main differences being in procedure rather than in substantive law.
- ↑ Dyer's Reports, 155a.
