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In Chudleigh's case, 1 Rep. 123.
1. fol. 44.
They are both
commended by Popham, chief justice, 1. And all these three the statute did find to be in 36 Eliz., where he saith, that there in the disposition of a use by will, whereof fol
is little need to search and collect out lowed the unjust disinherison of many. Now of cases, before this statute, what the mischief the favour of the law unto heirs appeareth in was which the scope of the statute was to redress; many parts of the law; of descent which privibecause there is a shorter way offered us, by the legeth the possession of the heir against the entry sufficiency and fulness of the preamble, and be- of him that has right by the law; that a man shall cause it is indeed the very level which doth direct not warrant against his heir, except he warrant the
very ordinance of the statute, and because all against himself, and divers other cases too long the mischief hath grown by expounding of this to stand upon; and we see the ancient law in statute, as if they had cut off the body of this Glanvill's time was, that the ancestor could not statute from the preamble; it is good to consider disinherit his heir by grant, or other act executed it and ponder it thoroughly.
not in time of sickness; neither could he alien The preamble hath three parts. land which had descended unto him, except it
First, a recital of our principal in- were for consideration of money or Glanb, b. 7. chen convenience, which is the root of all the rest. service; but not to advance any younger
Secondly, an enumeration of divers particular brother without the consent of the heir. inconveniences, as branches of the former.
2. For trials, no law ever took a Thirdly, a taste or brief note of the remedy that stricter course that evidence should not obscure and the statute meaneth to apply.
be perplexed, nor juries inveigled, than trial. The principal inconvenience, which the common law of England; as on the other side, pal inconveni. is radix omnium malorum, is the never law took a stricter or more precise course
digressing from the grounds and prin- with juries, that they should give a direct verdict. ciples of the common law, by inventing a mean For whereas in a manner all laws do give the to transfer lands and hereditaments without any triers, or jurors (which in other laws are called solemnity or act notorious; so as the whole sta- judges de facto) leave to give a non liquet, that is, tute is to be expounded strongly towards the no verdict at all, and so the cause to stand abated; extinguishment of all conveyances, whereby the our law enforceth them to a direct verdict, general freehold or inheritance may pass without any new or special; and whereas other laws accept of confections of deeds, executions of estate or en- plurality of voices to make a verdict, our law en. tries, except it be where the estate is of privity forceth them all to agree in one; and whereas and dependence one towards the other; in which other laws leave them to their own time and ease, cases, mutatis mutandis, they might pass by the and to part, and to meet again ; our law doth rules of the common law.
duress and imprison them in the hardest manner, The particular inconveniences by the without food, light, or other comfort, until they law rehearsed may be reduced into four be agreed. In consideration of which strictness heads.
and coercion, it is consonant, that the law do 1. First, that these conveyances in use are weak require in all matters brought to issue, that there for consideration.
be full proof and evidence; and, therefore, if the 2. Secondly, that they are obscure and doubt- matter of itself be in the nature of simple contracts, ful for trial.
which are made by parole without writing. 3. Thirdly, that they are dangerous for lack of In issue upon the mere right, which is a thing notice and publication.
hard to discern, it alloweth the wager of battail 4. Fourthly, that they are exempted from all to spare jurors. If time have wore the marks and such titles as the law subjecteth possessions badges of truth : from time to time there have unto.
been statutes of limitation, where you shall find The first inconvenience lighteth upon heirs. this mischief of perjuries often recited ; and lastly, The second upon jurors and witnesses. which is the matter in hand, all inheritances could The third upon purchasers.
not pass but by acts overt and notorious, as by The fourth upon such as come in by gift in deed, livery, and record. law.
3. For purchasers, bonâ fide, it may 3. The use All which are persons that the law doth prin- appear that they were ever favou red in dangereurope cipally respect and favour.
our law, as first by the great favour of For the first of these are there three warranties which were ever for the indemnity of weak in consi. impediments to the judgment of man, purchasers : as where we see that by the law in
in disposing wisely and advisedly of E. III.'s time, the disseisee could not enter upon his estate.
the feoffee in regard of the warranty. So again First, nonability of mind.
the collateral guarranty, which otherwise is a Secondly, want of time.
hard law, grew no doubt only upon favour of Thirdly, of wise and faithful counsel about purchasers ; so likewise that the law doth take
strictly rent charge, conditions, extent, was Vol. III.-39
2. The particu. lar inconvenience.
want of notice
1. They are
2 - 2
4. They are exempt from all tities in law.
3. A touch of
merely in favour of purchasers; so was the bind- fore specially favoured, as a proper conceit and ing of fines at the common law, the invention and invention of our law. So, again, they principally practice of recoveries, to defeat the statute of en- favour such as have ancient rights, and therefore tails, and many more grounds and learnings of Lett telleth us that it is commonly said that a law are to be found, respect the quiet possession right cannot die: and that ground of law, that a of purchasers. And, therefore, though the statute freehold cannot be in suspense, showeth it well, of 1 R. III. had provided for the purchaser in insomuch that the law will rather give the land to some sort, by enabling the acts and conveyances the first comer, which we call an occupant, than of cestuy que use, yet, nevertheless, the statute want a tenant to a stranger's action. did not at all disable the acts or charges of the And, again, the other ancient ground of law of feoffees: and so, as Walmsly, justice, said, 42 Eliz. remitter, showeth that where the tenant faileth they played at double hand, for cestuy que use without folly in the demandant, the law exemight sell, and the feoffee might sell, which was cuteth the ancient right. To conclude, therefore, a very great uncertainty to the purchaser. this part, when this practice of feoffments in use
4. For the fourth point of inconveni- did prejudice and damnify all those persons that ence towards those that come in by the ancient common law favoured, and did abso
law; conveyances in uses were like lutely cross the wisdom of the law, which was to privileged places or liberties : for as there the have conveyances considerate and notorious, and law doth not run, so upon such conveyances the to have trial thereupon clear and not inveigled, it law could take no hold, but they were exempted is no marvel that the statute concludeth, that the from all titles in law. No man is so absolute subtile imaginations and abuses tended to the utter owner in his own possessions, but that the wis- subversion of the ancient common laws of this dom of the law doth reserve certain titles unto realm. others; and such persons come not in by the plea- The third part giveth a touch of the sure and disposition of the party, but by the remedy which the statute intendeth to the remedy. justice and consideration of law, and, therefore, minister, consisting in two parts. of all others they are most favoured : and they are First, the extirpation of feoffinents. principally three.
Secondly, the taking away of the hurt, damage, 1. The king and lords, who lost the benefit of and deceit of uses; out of which have been gaattainders, fines for alienations, escheats, aids, thered two extremities of opinions. herriots, reliefs, &c.
The first opinion is, that the intention of the 2. The demandants in præcipes either real or statute was to discontinue and banish all conveypersonal, for debt and damages, who lost the ances in use ; grounding themselves both upon benefit of their recoveries and executions. the words, that the statute doth not speak of the
3. Tenants in dower, and by the courtesy, who extinguishment or extirpation of the use, namely, lost their estates and titles.
by a unity of possession, but of an extinguishment 1. First for the king: no law doth endow the or extirpation of the feoffment, &c., which is the king or sovereign with more prerogatives than conveyance itself. one : for it preserveth and exempteth his person Secondly, out of the words abuse and errors, from suits and actions, his possessions from inter- heretofore used and accustomed, as if uses had not ruption or disturbance, his right from limitation been at the common law, but had been only an of time, his patents from all deceits and false erroneous device and practice. To both which I suggestions. Next the king is the lord, whose answer: duties and rights the law doth much favour, be- To the former, that the extirpation which the cause the law supposeth the land did originally statute meant was plain, to be of the feoffee's escome from him ; for until the statute of quia emp- tate, and not of the form of conveyances. tores terrarum, the lord was not forced to distract
To the laiter I say, that for the word abuse, that or dismember his signiory or service. So, until may be an abuse of the law, which is not against 15 H. VII. the law was taken, that the lord, upon law, as the taking of long leases of lands at this his title of wardship, should oust a reconuzee of a day in capite to defraud wardships is an abuse of statute, or a termor : So again we see, that the law, but yet it is according to law, and for the statite of mortmain was made to preserve the word (errors) the statute meant by it, not a mislord's escheats and wardships. The tenant in taking of the law, but a wandering or going dower is so much favoured, as that it is the com- astray, or digressing from the ancient practice of mon saying and by-word in the law, that the the law, into a bye-course: as when we say, erralaw favoureth three things.
vimus cum patribus nostris, it is not meant of ig1. Life. 2. Liberty. 3. Dower.
but of perversity. But to prove that the S», in case of voucher, the fi me shall not be de- statute meant not to suppress the form of convey Jayed, but shall recover against the heir mainte- ances, there be three reasons which are not anJant: So likewise for the tenant by courtesy, as swerable. t is called, and by the law of England, and there- ! The first is, that the statute in every branch
Cap. 2. The
thereof hath words de futuro, that are seised, or be handled in my next day's discourse, and so
rest of the words are but literæ mortuæ, fulfilling
Secondly, a purview, or ordinance thereupon. The third reason I make is out of the words of
The cases of the statute are three, The cases of the the first proviso, where it is said, that no primer and every one hath his purview : the statute. seisin, livery, fine, nor alienation, &c., shall be general case; the case of feoffees to the use of
taken for any estate executed by force some of them; and the general case of feoffees
of the statute, before the first of May, to the use or pernors of rents or profits. 1536, but that they shall be paid for uses made The general case is built upon eight
2. The general and executed in possession for the time after; material words: four on the part
of the case. where the word made directly goeth to convey- feoffees; three on the part of cestuy que use; ances in use made after the statute, and can have and one common to them both. no other understanding; for the words, executed The first material word on the part of the in possession, would have served for the case of feoffees is the word person. This excludes all regress: and, lastly, which is more than all, if abeyance; for there can be no confidence reposed they have had any such intent, the case being so but in a person certain. It excludes again all general and so plain, they would have had words corporations: for they are enabled to a use cerexpress, that every limitation of use made after tain; for note on the part of the feoffor over the the statute should have been void ; and this was statute insists upon the word person; and on the the exposition, as tradition goeth, that a reader of part of cestuy que use, it ever addeth, body poGray's Inn, that read soon after the statute, was litic. in trouble for, and worthily, which, I suppose,
The second word material is the was Boiser, whose reading I could never see; but word seised. This excludes chattels. lington's case, 2 I do now insist upon it, because now again some, The reason they meant to remit the in an immoderate invective against uses, do re- common law, and not to alter that chattels might lapse to the same opinion.
ever pass by testament or by parole ; therefore The second opinion, which I call a the use did not pervert them. It excludes again Opinion.
contrary extremity, is that the statute rights, for it was against the rules of the common meant only to remedy the mischiefs in the pre- law to grant or transfer rights; therefore the staamble, recited as they grew by reason of divided tute would execute them. Thirdly, it excludes uses; although the like mischief may grow upon contingent uses, because the seisin can be but to the contingent uses, yet the statute had no fore- a fee-simple of a use; and when that is limited, sight of them at that time, and so it was merely the seisin of the feoffee is spent; for Littleton a new case, not comprised. Whereunto I answer, tells us, that there are but two seisins; one, in that I grant the work of the statute is to execute dominio ut de feodo ; the other, ut de feodo ; and the divided use; and, therefore, to make any use the feoffee by the common law could execute but void by this statute which was good before; the fee-simple to uses present, and no post uses; though it doth participate of the mischief recited and therefore the statute meant not to execute in the statute, were to make a law upon a pream- them. ble without a purview, which were grossly ab- The third material word is the word hereafter : surd. But upon the question what uses are that bringeth in conveyances made after the staexecuted, and what not; and whether out of the tute. It brings in again conveyances made before possessions of a disseisin, or other possessions and disturbed by disseisin and recontinued after ; out of privity or not, there you shall guide your for it is not said, infeoffed to use, but hereafter exposition according to the preamble; as shall seised.
Lisle v. Gras.
Cro. Jac. 401.
The fourth word is hereditament, which is to of the statute crosseth that which was to execute be understood of those things whereof an inherit- such uses, as were confidences and trust, which ance may be, and not of those things whereof an could not be in case of disseisin; for if there inheritance is in esse; for if I grant a rent charge were a commandment precedent, then the land de novo for life to a use, this is good enough; and was vested in cestuy que use upon the entry; and yet there is no inheritance in being of this rent. if the disseisin were of the disseisor's own head, This word likewise excludes annuities and uses then no trust. And thus much for the case of themselves, so that a use cannot be to a use. exposition of this statute: here follow the ordi
The first words on the part of cestuy que use are nance and purview thereupon. the words, use, trust, or confidence; whereby it The purview hath two parts: the is plain that the statute meant not to make voca- first, operatio statuti, the effect that the ordinance
bulatum artis, but it meant to remedy statute worketh; and there is modus
The second word is the word person, that cestuy que use shall be in posses- Senhouse.
again, which excludeth all abeyance; sion of like estate as he hath in the use; $25. 686. it excludeth also dead uses, which are not to the fiction quomodo is, that the statute Rep. 10. 28. bodies lively and natural, as the building of a will have the possession of cestuy que Chudleigh's church, the making of a bridge; but here, as was use, as a new body compounded of mat- Cooper v. noted before, is ever coupled with body politic. ter and form; and that the feoffees shall Ro Abr. 780.
The third word is the word other : The statute give matter and substance, and the use meant not to cross the common law. Now, at this shall give form and quality. The material words time uses were grown into such familiarity, as in the first part of the purview are four. men could not think of a possession, but in course The first words are, remainder and reverter, the of use; and so every man was said to be seised to statute having spoken before of uses in fee-simple, his own use, as well as to the use of others; in tail, for life, or years, addeth, or otherwise in therefore, because the statute would not stir nor remainder or reverter; whereby it is manifest, turmoil possessions settled at common law, it that the first words are to be understood of uses putteth in precisely this word, other; meaning in possession. For there are two substantial and the divided use, and not the conjoined use; and essential differences of estates; the one limiting this word causeth the clause in joint feoffees to the times, for all estates are but times of their follow in a branch by itself; for else that case continuances; the former maketh like difference had been doubtful upon this word, other. of fee-simple, fee-tail, for life or years; and the
The words that are common to both other maketh difference of possession as remainare words expressing the conveyance der; all other differences of estate are but acci
whereby the use ariseth, of which dents, as shall be said hereafter. These two the words those that breed any question are, agree-statute meant to take hold of, and at the words, ment, will, otherwise, whereby some have infer- remainder and reverter, it stops: it adds not words, red that uses might be raised by agreement parole, right, title, or possibility, nor it hath not general so there were a consideration of money or other words, or otherwise; whereby it is most plain, matter valuable; for it is expressed in the words that the statute meant to execute no inferior uses before, bargain, sale, and contract, but of blood, to remainder or reverter: that is to say, no possior kindred; the error of which collection ap- bility or contingencies, but estates, only such as peareth in the word immediately following, the feoffees might have executed by conscience namely, will, whereby they might as well include, made. Note, also, that the very letter of the stathat a man seised of land might raise a use by tute doth take notice of a difference between a use will, especially to any of his sons or kindred, in remainder and a use in reverter; which though it where there is a real consideration; and by that cannot be properly, because it doth not depend upon reason, mean, betwixt this statute and by the particular estates, as remainders do, neither did statute of 32 of wills, lands were devisable, then before the statute draw any tenures as reverespecially to any man's kindred, which was sions do; yet, the statute intends there is a difclearly otherwise ; and, therefore, those words ference when the particular use, and the use limited were put in, but in regard of uses formerly trans- upon the particular use, are both new uses, in ferred by those conveyances; for it is clear that which case it is a use in remainder; and where a use in esse by simple agreement, with con- the particular use is a new use, and the remnant sideration, or without, or likewise by will, might of the use is the old use, in which case it is a use be transferred; and there was a person seised to in reverter. a lise, by force of that agreement or will, namely, The next material words are, from henceforth, to the use of the assignee; and, for the word which doth exclude all conceit of relation that otherwise, it should by the generality of the word cestuy que use shall not come in: as from the include a disseisin to a use. But the whole scope time of the first feoffments to use, as Brudnell's
Collard v. Call.
26 Hen. 8. 13.
conceit was in 14 H. VIII. That is, the feoffee points of estate, so there it is endowed with the had granted a rent charge, and cestuy que use had possession in all accidents and circumstances of made a feoffment in fee, by the statute of 1 R. III. estate. Wherein first note, that it is gross and the feoffee should have held it discharged, because absurd to expound the form of the use any whit the act of cestuy que use shall put the feoffee in, to destroy the substance of the estate; as to make as if cestuy que use had been seised in from the a doubt, because the use gave no dower or tenan. time of the first use limited ; and, therefore, the cy by the courtesy, that therefore the possession statute doth take away all such ambiguities, and when it is transferred would do so likewise: no, expresseth that cestuy que use shall be in posses- but the statute meant such quality, manner, form, sion from henceforth; that is, from the time of and condition, as it is not repugnant to the corthe Parliament for uses then in being, and from poral presence and possession of the estate. the time of the execution for uses limited after Next, for the word condition, I do not hold it the Parliament.
to be put in for uses upon condition, though it be The third material words are, lawful seisin, also comprised within the general words ; but state, and possession, not a possession in law only, because I would have things stood upon learn. but a seisin in fact; not a title to enter into the edly, and according to the true sense, I hold it land, but an actual estate.
but for an explaining, or word of the effect; as it The fourth words are, of and in such estates is in the statute of 26 of treasons, where as they had in the use; that is to say, like estates, it is said, that the offenders shall be fee-simple, fee-tail, for life, for years at will, in attainted of the overt fact by men of their condipossession, and reversion, which are the sub- tion, in this place, that is to say, of their degree stantial differences of estates, as was expounded and sort: and so the word condition in this place by the branch of the fiction of the statute which is no more, but in like quality, manner, form, and follows.
degree, or sort; so as all these words amount but This branch of fiction hath three material words modo et forma. Hence, therefore, all circumor clauses: the first material clause is, that the stances of estate are comprehended as sole seisin, estate, right, title, and possession that was in or jointly seisin, by intierties, or by moieties, a such person, &c., shall be in cestuy que use ; for circumstance of estate to have age as coming in that the matter and substance of the estate of by descent, or not age as purchaser; a circumcesty que use is the estate of the feoffee, and more stance of estate descendible to the heir of the part' he cannot have ; so as if the use were limited to of the father, or of the part of the mother; a circesłuy que use and his heirs, and the estate out of cumstance of estate conditional or absolute, rewhich it was limited was but an estate for life, mitted or not remitted, with a condition of intercestuy que use can have no inheritance: so if, when marriage or without. All these are accidents and the statute came, the heir of the feoffee had not circumstances of estate, in all which the possesentered after the death of his ancestor, but had sion shall ensue the nature and quality of the use: only a possession in law, cestuy que use in that and thus much of the first case, which is the case should not bring an assize before entry, be general case. cause the heir of the feoffee could not; so that The second case of the joint feoffees The second the matter whereupon the use might work is the needs no exposition; for it pursueth feoffee's estate. But note here : whereas before, the penning of the general case: only this I will when the statute speaks of the uses, it spake only note, that although it had been omitted, yet the of uses in possession, remainder, and reverter, and law upon the first case would have been taken as not in title or right: now, when the statute speaks the case provided : so that it is rather an explawhat shall be taken from the feoffee, it speaks of nation than an addition; for turn that case the title and right: so that the statute takes more other way, that one were enfeoffed to the use of from the feoffee than it executes presently, in cases himself, and others as that case is, that divers where there are uses in contingence which are but were infeoffed to the use of one of them, I hold titles.
the law to be, that in the former case they shall The second word is clearly, which be seised jointly; and so in the latter case cestuy
seems properly and directly to meet que use shall be seised solely; for the word Batke: 331, 332. with the conceit of scintilla juris, as other, it shall be qualified by construction of Ngale , 2 Mod. well as the words in the preamble of cases, as shall appear when I come to my divi
extirpating and extinguishing such sion. But because this case of co-feoffees to the
feofsments, so as their estate is clearly use of one of them was a general case in the extinct.
realm, therefore they foresaw it and passed over The third material clause is, after such quality, the case e converso, which was but an especial manners, form, and condition as they had in the case: and they were loath to bring in this case, use, so as now as the feoffee's estate gives matter, by inserting the word only into the first case, to 80 the use gives form : and as in the first clause have penned it to the use only of other persons. the use was endowed with the possession in for they had experience what doubt the word only
Haly v. Ryley.