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In Chudleigh's case, I Rep. 123.
commended by Popham, chief justice,| in 36 Eliz., where he saith, that there is little need to search and collect out of cases, before this statute, what the mischief was which the scope of the statute was to redress; because there is a shorter way offered us, by the sufficiency and fulness of the preamble, and because it is indeed the very level which doth direct the very ordinance of the statute, and because all the mischief hath grown by expounding of this statute, as if they had cut off the body of this statute from the preamble; it is good to consider it and ponder it thoroughly.
The preamble hath three parts. First, a recital of our principal inconvenience, which is the root of all the rest.
1. fol. 44.
They are both
obscure and doubtful for
1. And all these three the statute did find to be in the disposition of a use by will, whereof followed the unjust disinherison of many. Now the favour of the law unto heirs appeareth in many parts of the law; of descent which privilegeth the possession of the heir against the entry of him that has right by the law; that a man shall not warrant against his heir, except he warrant against himself, and divers other cases too long to stand upon; and we see the ancient law in Glanvill's time was, that the ancestor could not disinherit his heir by grant, or other act executed not in time of sickness; neither could he alien land which had descended unto him, except it were for consideration of money or Glanb. b. 7. c. 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 the statute meaneth to apply. be perplexed, nor juries inveigled, than trial. the common law of England; as on the other side, never law took a stricter or more precise course with juries, that they should give a direct verdict. For whereas in a manner all laws do give the triers, or jurors (which in other laws are called judges de facto) leave to give a non liquet, that is, no verdict at all, and so the cause to stand abated; our law enforceth them to a direct verdict, general or special; and whereas other laws accept of plurality of voices to make a verdict, our law enforceth them all to agree in one; and whereas other laws leave them to their own time and ease, and to part, and to meet again; our law doth duress and imprison them in the hardest manner, without food, light, or other comfort, until they be agreed. In consideration of which strictness and coercion, it is consonant, that the law do
1. The prici
The principal inconvenience, which pal inconveni- is radix omnium malorum, is the digressing from the grounds and principles of the common law, by inventing a mean to transfer lands and hereditaments without any solemnity or act notorious; so as the whole statute is to be expounded strongly towards the extinguishment of all conveyances, whereby the freehold or inheritance may pass without any new confections of deeds, executions of estate or entries, except it be where the estate is of privity and dependence one towards the other; in which cases, mutatis mutandis, they might pass by the rules of the common law.
2. The particu
The particular inconveniences by the lar inconveni- law rehearsed may be reduced into four heads.
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 notice and publication.
4. Fourthly, that they are exempted from all such titles as the law subjecteth possessions
The first inconvenience lighteth upon heirs.
The fourth upon such as come in by gift in
1. They are
For the first of these are there three weak in cousi impediments to the judgment of man, in disposing wisely and advisedly of
In issue upon the mere right, which is a thing hard to discern, it alloweth the wager of battail to spare jurors. If time have wore the marks and badges of truth: from time to time there have been statutes of limitation, where you shall find this mischief of perjuries often recited; and lastly, which is the matter in hand, all inheritances could not pass but by acts overt and notorious, as by deed, livery, and record.
want of notice
3. For purchasers, bonâ fide, it may 3. The use appear that they were ever favoured in dangerous fice our law, as first by the great favour of warranties which were ever for the indemnity of purchasers: as where we see that by the law in E. III.'s time, the disseisee could not enter upon the feoffee in regard of the warranty. So again the collateral guarranty, which otherwise is a 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
merely in favour of purchasers; so was the binding of fines at the common law, the invention and practice of recoveries, to defeat the statute of entails, and many more grounds and learnings of law are to be found, respect the quiet possession of purchasers. And, therefore, though the statute of 1 R. III. had provided for the purchaser in some sort, by enabling the acts and conveyances of cestuy que use, yet, nevertheless, the statute did not at all disable the acts or charges of the feoffees: and so, as Walmsly, justice, said, 42 Eliz. they played at double hand, for cestuy que use might sell, and the feoffee might sell, which was a very great uncertainty to the purchaser.
4. They are exempt from all tities in law.
4. For the fourth point of inconvenience towards those that come in by law; conveyances in uses were like privileged places or liberties: for as there the law doth not run, so upon such conveyances the law could take no hold, but they were exempted from all titles in law. No man is so absolute owner in his own possessions, but that the wisdom of the law doth reserve certain titles unto others; and such persons come not in by the pleasure and disposition of the party, but by the justice and consideration of law, and, therefore, of all others they are most favoured: and they are principally three.
1. The king and lords, who lost the benefit of attainders, fines for alienations, escheats, aids, herriots, reliefs, &c.
2. The demandants in præcipes either real or personal, for debt and damages, who lost the benefit of their recoveries and executions.
fore specially favoured, as a proper conceit and invention of our law. So, again, they principally favour such as have ancient rights, and therefore Lett telleth us that it is commonly said that a right cannot die: and that ground of law, that a freehold cannot be in suspense, showeth it well, insomuch that the law will rather give the land to the first comer, which we call an occupant, than want a tenant to a stranger's action.
And, again, the other ancient ground of law of remitter, showeth that where the tenant faileth without folly in the demandant, the law executeth the ancient right. To conclude, therefore, this part, when this practice of feoffments in use did prejudice and damnify all those persons that the ancient common law favoured, and did absolutely cross the wisdom of the law, which was to have conveyances considerate and notorious, and to have trial thereupon clear and not inveigled, it is no marvel that the statute concludeth, that the subtile imaginations and abuses tended to the utter subversion of the ancient common laws of this realm.
The third part giveth a touch of the remedy which the statute intendeth to minister, consisting in two parts.
3. A touch of the remedy.
First, the extirpation of feoffients. Secondly, the taking away of the hurt, damage, and deceit of uses; out of which have been gathered two extremities of opinions.
The first opinion is, that the intention of the statute was to discontinue and banish all conveyances in use; grounding themselves both upon 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.
1. First for the king: no law doth endow the king or sovereign with more prerogatives than one for it preserveth and exempteth his person from suits and actions, his possessions from interruption or disturbance, his right from limitation of time, his patents from all deceits and false suggestions. Next the king is the lord, whose duties and rights the law doth much favour, because the law supposeth the land did originally come from him; for until the statute of quia cmptores terrarum, the lord was not forced to distract or dismember his signiory or service. So, until 15 H. VII. the law was taken, that the lord, upon his title of wardship, should oust a reconuzee of a statute, or a termor: So again we see, that the statute of mortmain was made to preserve the lord's escheats and wardships. The tenant in dower is so much favoured, as that it is the common saying and by-word in the law, that the law favoureth three things.
1. Life. 2. Liberty. 3. Dower.
So, in case of voucher, the fome shall not be deayed, but shall recover against the heir maintenant: So likewise for the tenant by courtesy, as t is called, and by the law of England, and there
by a unity of possession, but of an extinguishment or extirpation of the feoffment, &c., which is the conveyance itself.
Secondly, out of the words abuse and errors, heretofore used and accustomed, as if uses had not been at the common law, but had been only an erroneous device and practice. To both which I answer:
To the former, that the extirpation which the statute meant was plain, to be of the feoffee's estate, and not of the form of conveyances.
To the latter I say, that for the word abuse, that may be an abuse of the law, which is not against law, as the taking of long leases of lands at this day in capite to defraud wardships is an abuse of law, but yet it is according to law, and for the word (errors) the statute meant by it, not a mistaking of the law, but a wandering or going astray, or digressing from the ancient practice of the law, into a bye-course: as when we say, erravimus cum patribus nostris, it is not meant of ignorance, but of perversity. But to prove that the statute meant not to suppress the form of convey ances, there be three reasons which are not answerable.
The first is, that the statute in every branch
thereof hath words de futuro, that are seised, or hereafter shall be seised; and whereas it may be said that these words were put in, in regard of uses suspended by discontinuance, and so no present seisin to the use, until a regress of the feoffees; that intendment is very particular, for commonly such cases special are brought in by provisos, or special branches, and not intermixed in the body of a statute; and it had been easy for the statute to have," or hereafter shall be seised upon every feoffment, &c., heretofore had or made."
My second reason is upon the words of the statute of enrolment, which saith, that (no hereditaments shall pass, &c., or any use thereof, &c.,) whereby it is manifest, that the statute meant to leave the form of conveyance with the addition of a farther ceremony.
The third reason I make is out of the words of the first proviso, where it is said, that no primer seisin, livery, fine, nor alienation, &c., shall be taken for any estate executed by force 27 H. 8. of the statute, before the first of May, 1536, but that they shall be paid for uses made and executed in possession for the time after; where the word made directly goeth to conveyances in use made after the statute, and can have no other understanding; for the words, executed in possession, would have served for the case of regress and, lastly, which is more than all, if they have had any such intent, the case being so general and so plain, they would have had words express, that every limitation of use made after the statute should have been void; and this was the exposition, as tradition goeth, that a reader of Gray's Inn, that read soon after the statute, was in trouble for, and worthily, which, I suppose, was Boiser, whose reading I could never see; but I do now insist upon it, because now again some, in an immoderate invective against uses, do relapse to the same opinion.
The second opinion, which I call a contrary extremity, is that the statute meant only to remedy the mischiefs in the preamble, recited as they grew by reason of divided uses; although the like mischief may grow upon the contingent uses, yet the statute had no foresight of them at that time, and so it was merely a new case, not comprised. Whereunto I answer, that I grant the work of the statute is to execute the divided use; and, therefore, to make any use void by this statute which was good before; though it doth participate of the mischief recited in the statute, were to make a law upon a preamble without a purview, which were grossly absurd. But upon the question what uses are executed, and what not; and whether out of the possessions of a disseisin, or other possessions out of privity or not, there you shall guide your exposition according to the preamble; as shall
Cap. 2. The
be handled in my next day's discourse, and so much touching the preamble of this law. For the body of the law, I would wish all readers that expound statutes body of the to do as scholars are willed to do: that is, first, to seek out the principal verb; that is, to note and single out the material words whereupon this statute is framed; for there are, in every statute, certain words, which are veins where the life and blood of the statute cometh, and where all doubts do arise and issue forth, and all the rest of the words are but literæ mortuæ, fulfilling words.
The body of the statute consisteth upon two parts.
First, a supposition, or case put, as Anderson, 36 Eliz., called it.
Secondly, a purview, or ordinance thereupon. The cases of the statute are three, The cases of the and every one hath his purview: the statute. general case; the case of feoffees to the use of some of them; and the general case of feoffees to the use or pernors of rents or profits.
The general case is built upon eight 2. The general material words: four on the part of the case. feoffees; three on the part of cestuy que use; and one common to them both.
The first material word on the part of the feoffees is the word person. This excludes all abeyance; for there can be no confidence reposed but in a person certain. It excludes again all corporations: for they are enabled to a use certain; for note on the part of the feoffor over the statute insists upon the word person; and on the part of cestuy que use, it ever addeth, body politic.
Dy. 49. CramVentr. 310.
The second word material is the word seised. This excludes chattels. lington's case, 2 The reason they meant to remit the common law, and not to alter that chattels might ever pass by testament or by parole; therefore the use did not pervert them. It excludes again rights, for it was against the rules of the common law to grant or transfer rights; therefore the statute would execute them. Thirdly, it excludes contingent uses, because the seisin can be but to a fee-simple of a use; and when that is limited, the seisin of the feoffee is spent; for Littleton tells us, that there are but two seisins; one, in dominio ut de feodo; the other, ut de feodo; and the feoffee by the common law could execute but the fee-simple to uses present, and no post uses; and therefore the statute meant not to execute them.
The third material word is the word hereafter : that bringeth in conveyances made after the statute. It brings in again conveyances made before and disturbed by disseisin and recontinued after; for it is not said, infeoffed to use, but hereafte seised.
The fourth word is hereditament, which is to be understood of those things whereof an inheritance may be, and not of those things whereof an inheritance is in esse; for if I grant a rent charge de novo for life to a use, this is good enough; and yet there is no inheritance in being of this rent. This word likewise excludes annuities and uses themselves, so that a use cannot be to a use.
The first words on the part of cestuy que use are the words, use, trust, or confidence; whereby it is plain that the statute meant not to make vocabulatum artis, but it meant to remedy matter, and not word; and in all the clauses it still carrieth the words.
The second word is the word person, again, which excludeth all abeyance; it excludeth also dead uses, which are not to bodies lively and natural, as the building of a church, the making of a bridge; but here, as was noted before, is ever coupled with body politic.
The third word is the word other: The statute meant not to cross the common law. Now, at this time uses were grown into such familiarity, as men could not think of a possession, but in course of use; and so every man was said to be seised to his own use, as well as to the use of others; therefore, because the statute would not stir nor turmoil possessions settled at common law, it putteth in precisely this word, other; meaning the divided use, and not the conjoined use; and this word causeth the clause in joint feoffees to follow in a branch by itself; for else that case had been doubtful upon this word, other.
Collard v. Call.
of the statute crosseth that which was to execute such uses, as were confidences and trust, which could not be in case of disseisin; for if there were a commandment precedent, then the land was vested in cestuy que use upon the entry; and if the disseisin were of the disseisor's own head, then no trust. And thus much for the case of exposition of this statute: here follow the ordinance and purview thereupon.
Lisle v. Gray.
The purview hath two parts: the first, operatio statuti, the effect that the ordinance statute worketh; and there is modus operandi, a fiction or explanation how the statute doth work that effect. The effect is, that cestuy que use shall be in possession of like estate as he hath in the use; the fiction quomodo is, that the statute will have the possession of cestuy que use, as a new body compounded of matter and form; and that the feoffees shall give matter and substance, and the use shall give form and quality. The material words in the first part of the purview are four.
Cro. Jac. 401.
The first words are, remainder and reverter, the statute having spoken before of uses in fee-simple, in tail, for life, or years, addeth, or otherwise in remainder or reverter; whereby it is manifest, that the first words are to be understood of uses in possession. For there are two substantial and essential differences of estates; the one limiting the times, for all estates are but times of their continuances; the former maketh like difference 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 acciwhereby 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 use, by force of that agreement or will, namely, to the use of the assignee; and, for the word otherwise, it should by the generality of the word include a disseisin to a use. But the whole scope
The next material words are, from henceforth, which doth exclude all conceit of relation that cestuy que use shall not come in: as from the time of the first feoffments to use, as Brudnell's
conceit was in 14 H. VIII. That is, the feoffee had granted a rent charge, and cestuy que use had made a feoffment in fee, by the statute of 1 R. III. the feoffee should have held it discharged, because the act of cestuy que use shall put the feoffee in, as if cestuy que use had been seised in from the time of the first use limited; and, therefore, the statute doth take away all such ambiguities, and expresseth that cestuy que use shall be in possession from henceforth; that is, from the time of the Parliament for uses then in being, and from the time of the execution for uses limited after the Parliament.
The third material words are, lawful seisin, state, and possession, not a possession in law only, but a seisin in fact; not a title to enter into the land, but an actual estate.
The fourth words are, of and in such estates as they had in the use; that is to say, like estates, fee-simple, fee-tail, for life, for years at will, in possession, and reversion, which are the substantial differences of estates, as was expounded by the branch of the fiction of the statute which follows.
This branch of fiction hath three material words or clauses: the first material clause is, that the estate, right, title, and possession that was in such person, &c., shall be in cestuy que use; for that the matter and substance of the estate of cesty que use is the estate of the feoffee, and more he cannot have; so as if the use were limited to cestuy que use and his heirs, and the estate out of which it was limited was but an estate for life, cestuy que use can have no inheritance: so if, when the statute came, the heir of the feoffee had not entered after the death of his ancestor, but had only a possession in law, cestuy que use in that case should not bring an assize before entry, because the heir of the feoffee could not; so that the matter whereupon the use might work is the feoffee's estate. But note here: whereas before, when the statute speaks of the uses, it spake only of uses in possession, remainder, and reverter, and not in title or right: now, when the statute speaks what shall be taken from the feoffee, it speaks of title and right: so that the statute takes more from the feoffee than it executes presently, in cases where there are uses in contingence which are but titles.
points of estate, so there it is endowed with the possession in all accidents and circumstances of estate. Wherein first note, that it is gross and absurd to expound the form of the use any whit to destroy the substance of the estate; as to make a doubt, because the use gave no dower or tenancy by the courtesy, that therefore the possession when it is transferred would do so likewise: no, but the statute meant such quality, manner, form, and condition, as it is not repugnant to the corporal presence and possession of the estate.
26 Hen. 8. 13.
Next, for the word condition, I do not hold it to be put in for uses upon condition, though it be also comprised within the general words; but because I would have things stood upon learnedly, and according to the true sense, I hold it but for an explaining, or word of the effect; as it is in the statute of 26 of treasons, where it is said, that the offenders shall be attainted of the overt fact by men of their condition, in this place, that is to say, of their degree and sort: and so the word condition in this place is no more, but in like quality, manner, form, and degree, or sort; so as all these words amount but modo et forma. Hence, therefore, all circumstances of estate are comprehended as sole seisin, or jointly seisin, by intierties, or by moieties, a circumstance of estate to have age as coming in by descent, or not age as purchaser; a circumstance of estate descendible to the heir of the part of the father, or of the part of the mother; a circumstance of estate conditional or absolute, remitted or not remitted, with a condition of intermarriage or without. All these are accidents and circumstances of estate, in all which the possession shall ensue the nature and quality of the use: and thus much of the first case, which is the general case.
The second case of the joint feoffees The second needs no exposition; for it pursueth the penning of the general case: only this I will note, that although it had been omitted, yet the law upon the first case would have been taken as the case provided: so that it is rather an explanation than an addition; for turn that case the other way, that one were enfeoffed to the use of himself, and others as that case is, that divers were infeoffed to the use of one of them, I hold the law to be, that in the former case they shall be seised jointly; and so in the latter case cestuy que use shall be seised solely; for the word other, it shall be qualified by construction of cases, as shall appear when I come to my division. But because this case of co-feoffees to the use of one of them was a general case in the 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 so 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.
The second word is clearly, which seems properly and directly to meet And. 331, 332. with the conceit of scintilla juris, as Neale, 2 Mod. well as the words in the preamble of extirpating and extinguishing such feoffments, so as their estate is clearly