bred upon the statute of 1 R. III. after this third case and before the third case of rents comes in the second saving; and the reason of it is worth the noting, why the savings are interlaced before the third case; the reason of it is, because the third case needeth no saving, and the first two cases did need saving; and that is the reason of that again. It is a general ground, that where an act of Parliament is donor, if it be penned with an ac si, it is not a saving, for it is a special gift, and not a general gift, which includes all rights; and, therefore, in 11 H. VII., where, upon the alienation of women, the statute entitles the heir of him in remainder to enter, you find never a stranger, because the statute gives entry not simpliciter, but within an ac si; as if no alienation had been made, or if the feme had been naturally dead. Strangers that had right might have entered; and therefore no saving needs. So in the statute of 32 of leases, the statute enacts, that the leases shall be good and effectual in law, as if the lessor had been seised of a good and perfect estate in fee-simple; and therefore you find no saving in the statute; and so likewise of divers other statutes, where the statute doth make a gift or title good specially against certain persons, there needs no saving, except it be to exempt some of those persons, as in the statute of 1 R. III. Now, to apply this to the case of rents, which is penned with an ac si, namely, as if a sufficient grant or other lawful conveyance had been made, or executed by such as were seised; why, if such a grant of a rent had been made, one that had an ancient right might have entered and have avoided the charge; and therefore no saving needeth: but the second and first cases are not penned with an ac si, but absolute, that cestuy que use shall be adjudged in estate and possession, which is a judgment of Parliament stronger than any fine, to bind all rights; nay, it hath farther words, namely, in lawful estate and possession, which maketh that the stronger than any in the first clause. For if the words only had stood upon the second clause, namely, that the estate of the feoffee should be in cestuy que use, then perhaps the gift should have been special, and so the saving superfluous: and this note is very material in regard of the great question, whether the feoffees may make any regress; which opinion, I mean, that no regress is left unto them, is principally to be argued out of the saving; as shall be now declared for the savings are two in number: the first saveth all strangers' rights, with an exception of the feoffee's; the second is a saving out of the exception of the first saving, namely, of the feoffees' in case where they claim to their own proper use: it had been easy in the first saving out of the statute, other than such persons as are seised, or hereafter should be seised to any use, to have added to these words, executed by this statute; or in the second saving to have added unto the words, claiming to their proper use, these words, or to the use of any other, and executed by this statute: but the regress of the feoffee is shut out between the two savings; for it is the right of a person claiming to a use, and not unto his own proper use: but it is to be added, that the first saving is not to be understood as the letter implieth, that feoffees to use shall be barred of their regress, in case that it be of another feoffment than that whereupon the statute hath wrought, but upon the same feoffment; as if the feoffee before the statute had been disseised, and the disseised had made a feoffment in fee to I. D. his use, and then the statute came; this executeth the use of the second feoffment; but yet the first feoffees may make a regress, and they yet claim to a use, not by that feoffment upon which the statute hath wrought. but The third case. v. Cooke. 1 Mod. 223. Now followeth the third case of the statute, touching execution of rents; Boscawen & al. wherein the material words are four: First, whereas divers persons are seised, which hath bred a doubt that it should only go to rents in use at the time of the statute; but it is explained in the clause following, namely, as if a grant had been made to them by such as are or shall be seised. The second word is profit; for in the putting of the case, the statute speaketh of a rent; but after in the purview is added these words, o: profit. The third word is, ac si, scilicet, that they shall have the rent as if a sufficient grant or other lawful conveyance had been made and executed unto them. The fourth words are, the words of liberty or remedies attending upon such rent, scilicet, that he shall distrain, &c., and have such suits, entries, and remedies, relying again with an ac si, as if the grant had been made with such collateral penalties and advantages. Now for the provisos; the makers of this law did so abound with policy and discerning, as they did not only foresee such mischiefs as were incident to this new law immediately, but likewise such as were consequent in a remote degree; and, therefore, besides the express provisos, they did add three new provisos, which are in themselves subtractive laws: for, foreseeing that by the execution of uses, wills formerly made should be overthrown; they made an ordinance for wills. Foreseeing, likewise, that by execution of uses women should be doubly advanced; they made an ordinance for dowers and jointures. Foreseeing, again, that the execution of use would make frank-tenement pass by contracts parole, they made an ordinance for enrol- Beny v. Bowes ments of bargains and sales. The two 2 Inst. 672. 1 Ventr. 361. For the two provisos on the part of the tertenant, they both concern the saving of strangers from prejudice, &c. former they inserted into this law, and the third | ried to cestuy que use, by the general words in the they distinguished into a law apart, but without body of the law, scilicet, that the feoffee's estate, any preamble as may appear, being but a pro- right, title, and possession, &c. viso to this statute. Besides all these provisional laws; and besides five provisos, whereof three attend upon the law of jointure, and two born in Wales, which are not material to the purpose in hand; there are six provisos, which are natural and true members and limbs of the statute, whereof four concern the part of cestuy que use, and two concern the part of the feoffees. The four which concern the part of cestuy que use, tend all to save him from prejudice by the execution of the estate. The first saveth him from the extinguishment of any statute or recognisance, as if a man had an extent of a hundred acres, and a use of the inheritance of one; now, the statute, executing the possession to that one, would have extinguished his extent being entire in all the rest; or as if the conuzee of a statute having ten acres liable to the statute, had made a feoffment in fee to a stranger of two, and after had made a feoffment in fee to the use of the conuzee and his heirs. And upon this proviso there arise three questions: First, whether this proviso were not superfluous, in regard that cestuy que use was comprehended in the general saving, though the feoffees be excluded? Secondly, whether this proviso doth save statutes or executions, with an apportionment, or entire? Thirdly, because it is penned indefinitely in point of time, whether it shall go to uses limited after the statute, as well as to those that were in being at the time of the statute; which doubt is rather enforced by this reason, because there was for* uses at the time of the statute; for that the execution of the statute might be waved; but both possession and use, since the statute may be waved. The second proviso saveth cestuy que use from the charge of primer seisin, liveries, ouster les maines, and such other duties to the king, with an express limitation of time, that he shall be discharged from the time past, and charged for the time to come to the king, namely, May, 1536, to be communis terminus. The third proviso doth the like for fines, reliefs, and herriots, discharging them from the time past, and speaking nothing of the time to come. The fourth proviso giveth to cestuy que use all collateral benefits of vouchers, aid-priers, actions of waste, trespass, conditions broken, and which the feoffees might have had; and this is expressly limited for estates executed before May 1, 1536. And this proviso giveth occasion to intend that none of these benefits would have been car The text here is manifestly corrupted, nor does any probable conjecture occur for its amendment. The first saves actions depending Cheney's case. against the feoffees, and that they shall Moor, 196. not abate. The second saves wardships, liveries, and ouster les maines, whereof title was vested in regard of the heir of the feoffee, and this in case of the king only. What persons may be seised to a use, and what not. What persons may be cestuy que use, and what not. What persons may declare a use, and what not. Though I have opened the statute in order of words, yet I will make my the assurance of division in order of matter, namely, 1. The raising of uses. 2. The interruption of uses. 3. The executing of uses. Of the estate of this realm at this day upon uses. First, the raising of uses. Again, the raising of uses doth easily divide itself into three parts. 1. The persons that are actors to the conveyance to use. 2. The use itself. 3. The form of the conveyance. Then it is first to be seen what persons may be seised to a use, and what not; and what persons may be cestuy que use, and what not; and what persons may declare a use, and what not. to a use. The king cannot be seised to a use; 1. What persons no, not where he taketh in his natural may be seised body, and to some purpose as a common person; and, therefore, if land be given to the king and I. D. pour terme de leur vies, this use is void for a moiety. Like law is, if the king be seised of land in the right of his duchy of Lancaster, and covenanteth by his letters patents under the duchy seal to stand seised to the use of his son, nothing passeth. Like law, if King R. III. who was feoffer to diverse uses before he took upon him the crown, had, after he was king, by his letters patents granted the land over, the uses had not been renewed. The queen, not speaking of an imperial queen by marriage, cannot be seised to a use, though she be a body enabled to grant and purchase without the king; yet, in regard of the government and interest the king hath in her possession, she cannot be seised to a use. A corporation cannot be seised to a use, because their capacity is to a use certain; again, because they cannot execute an estate without doing wrong to their corporation or founder; but chiefly because of the letter of this statute, which, in any clause when it speaketh of the feoffee, resteth only upon the word person, but when it speaketh of cestuy que use, it addeth person or body politic. If a bishop bargain and sell lands whereof he | the term, and it shall not inure by way of disis seised in the right of his see, this is good charge, although the husband may dispose of the during his life; otherwise, it is where a bishop is wife's term. infeoffed to him and his successors, to the use of I. D. and his heirs, that is not good, no, not for the bishop's life, but the use is merely void. Vide contra. So if the lord of whom the land is held be infeoffed to the use of a person attainted, the lord shall not hold by way of discharge of the use, because of the king's title, annum, diem et vastum. A person uncertain is not within the statute, nor any estate in nubibus or suspense executed; as if I give land to I. S. the remainder to the right heirs of I. D. to the use of I. N. and his heirs, I. N. is not seised of the fee-simple of an estate pour vie of I. S. till I. D. be dead, and then Contrary law of tenant in tail; for, if I give land by tail in deed, since the statute, to A., to the use of B. and his heirs; B. hath a fee-simple determinable upon the death of A. without issue. And like law, though doubtful before the statute was; for the chief reason which bred the doubt before the statute, was because tenant in tail could not exe-in fee-simple. cute an estate without wrong; but that since the statute is quite taken away, because the statute saveth no right of entail, as the statute of 1 R. III. did; and that reason likewise might have been answered before the statute, in regard of the common recovery. A feme covert and an infant, though under years of discretion, may be seised to a use; for as well as land might descend to them from a feoffee to use, so may they originally be infeoffed to a use; yet, if it be before the statute, and they had, upon a subpoena brought, executed their estate during the coverture or infancy, they might have defeated the same; and then they should have been seised again to the use, and not to their own use; but since the statute, no right is saved unto them. If a feme covert or an infant be infeoffed to a use present since the statute, the infant or baron come too late to discharge or root up the feoffment; but if an infant be infeoffed to the use of himself and his heirs, and I. D. pay such a sum of money to the use of I. G. and his heirs, the infant may disagree and overthrow the contingent use. Contrary law, if the infant be infeoffed to the use of himself for life, the remainder to the use of I. S. and his heirs, he may disagree to the feoffment as to his own estate, but not to divest the remainder, but it shall remain to the benefit of him in remainder. And yet, if an attainted person be infeoffed to a use, the king's title, after office found, shall prevent the use, and relate above it; but until office, the cestuy que use is seised of the land. Like law of an alien; for if land be given to an alien to a use, the use is not void ab initio, yet neither alien or attainted person can maintain an action to defend the land. 2. What person Like law, if, before the statute, I give land to I. S. pour autre vie to a use, and I. S. dieth, living cestuy que use, whereby the freehold is in suspense, the statute cometh, and no occupant entereth: the use is not executed out of the freehold in suspense for the occupant, the disseisor, the lord by escheat. The feoffee upon consideration, not having notice, and all other persons which shall be seised to use, not in regard of their persons but of their title; I refer them to my division touching disturbance and interruption of uses. It followeth now to see what person may be a cestuy que use. The king may be a cestuy may be cestuy que use; but it behoveth both the declaration of the use, and the conveyance itself, to be matter of record, because the king's title is compounded of both; I say, not appearing of record, but by conveyance of record. And, therefore, if I covenant with I. S. to levy a fine to him to the king's use, which I do accordingly; and this deed of covenant be not enrolled, and the deed be found by office, the use vesteth not. E converso, if enrolled. If I covenant with I. S. to infeoff him to the king's use, and the deed be enrolled, and the feoffment also be found by office, the use vesteth. que te But if I levy a fine, or suffer a recovery to the king's use, and declare the use by deed of covenant enrolled, though the king be not party, yet it is good enough. Of a use to a person uncer. tain. A corporation may take a use, and yet it is not material whether the feoffient or the declaration be by deed; but I may infeoff I. S. to the use of a corporation, and this use may be averred. A use to a person uncertain is not void in the first limitation, but executeth not till the person be in esse; so that this is positive, that a use shall never be in The king's villain, if he be infeoffed to a use, abeyance as a remainder may be, but ever in a the king's title shall relate above the use; other-person certain upon the words of the statute, and wise, in case of a common person. the estate of the feoffees shall be in him or them which have the use. The reason is, because no confidence can be reposed in a person unknown and uncertain; and, therefore, if I make a feoffment to the use of I. S. for life, and then to the use of the right heirs of I. D., the remainder is not in abeyance, but the reversion is in the feoffor, But if the lord be infeoffed to the use of his villain, the use neither riseth, but the lord is in by the common law, and not by the statute discharged of the use. But if the husband be infeoffed to the use of his wife for years, if he die, the wife shall have quousque. So that upon the matter all persons uncertain in use are like conditions or limitations precedent. Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D. this is not executed in abeyance, and therefore not void. Like law, if I make a feoffment to the use of my wife that shall be, or to such persons as I shall maintain, though I limit no particular estate at all; yet the use is good, and shall in the interim return to the feoffor. Purefoy v. Ro gers. 2 Saund. 386. Chudleigh's 1 Rep. 129, 138. case. 2 Sid. 64, 123. 167 Heyne's v. Villiers. Bidford's case. 2 Ro. Abr. 791. Mo. 72). Bulger v. Lloyd. Salk 221, ib. v. Edge. ib. 229. Goodright v. Hornish, ib. Contrary law, if I once limit the whole fee-simple of the use out of me, and part thereof to a person uncertain, it shall never return to the feoffor by Way of fraction of the use; but look how it should have gone unto the feoffor; if I begin with a contingent use, so it shall go to the remainder; if I en232, Scattergood tail a contingent use, both estates are alike subject to the contingent use when it falleth; as when I make a feoffment in fee to the use of my wife for life, the remainder to my first begotten son; I having no son at that time, the reYelv. 37. mainder to my brother and his heirs: if my wife die before I have any son, the use shall not be in me, but in my brother. And yet if I marry again, and have a son, it shall divest from my brother, and be in my son, which is the skipping they talk so much of. 226. Davis v. Speed, ib. 675. Sir Ed. Lloyd v. Carew. Prec. in Chan. 74. Mo. 506. Ld. Buckhurst's case. Machell v. Clerk. Salk. 619. 7 Rep. 14. So if I limit a use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former; as if I make a feoffment to the use of my wife that shall be, and my first begotten son for their lives, and I marry; my wife taketh the whole use, and if I afterwards have a son, he taketh jointly with my wife. But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses; as if I infeoff A. to the use of B. for life, the remainder to C. for life, the remainder to the right heirs of B. this is a good remainder executed. So if I infeoff A. to the use of his right heirs, A. is in the fee-simple, not by the statute, but by the common law. Now are we to examine a special point of the disability of persons as take by the statute: and that upon the words of the statute, where divers persons are seised to the use of other persons; so that by the letter of the statute, no use is contained but where the feoffor is one, and cestuy que use is another. Therefore it is to be seen in what cases the same persons shall be both seised to the use and cestuy que use, and yet in by the statute; and in what cases they shall be diverse persons, and yet VOL. III.-40 in by the common law wherein I observe unto you three things: First, that the letter is full in the point. Secondly, that it is strongly urged by the clause of joint estates following. Thirdly, that the whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate; therefore the statute ought to be expounded, that where the party seised to the use, and the cestuy que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use, to take effect by the common law. As if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, then to the use of I. D. and his heirs, I. S. is in by the common law, and not by the statutes. Like law is, if I give lands to I. S. and his heirs, to the use of himself for life or for years, and then to the use of I. D. and his heirs, I. S. is in of an estate for life, or for years, by way of abridgment of estate in course of possession, and I. D. in of the fee-simple by the statute. So if I bargain and sell my land after seven years, the inheritance of the use only passeth; and there remains an estate for years by a kind of subtraction of the inheritance or reoccupier of my estate, but merely at the common law. 3. Contr. the fee siniple re mains, per Id. C. J Hale, in Weale v. Lower, Poll. 65, 66. and Gilb. v. of infra. 2 Raym. 855. But if I infeoff I. S. to the use himself in tail, and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and then to the use of my wife in fee; in both these cases the estate tail is executed by this statute: because an estate tail cannot be reoccupied out of a fee-simple, being a new estate, and not like a particular estate for life or years, which are but portions of the absolute fee; and, therefore, if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail in me, nor vesteth any present 1 And. 328. fee in the bargain, but is a use expectant. See Mr. Sun den's remarks in Gilb. V. & T. ed. Sugd. 162. Ans. 17. So if I infeoff I. S. to the use of I. D. for life, and then to the use of himself and his heirs, he is in of the fee-simple merely in course of possession, and as of a reversion, and not of a remainder. Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself for life, the remainder to the use of I. N. in fee: now the law will not admit fraction of estates; but I. S. is in with the rest by the statute. So if I infeoff I. S. to the use of himself and a stranger, they shall be both in by the statute, because they could not take jointly, taking by several titles. Like law, if I infeoff a bishop and Gilb. Us. 70. his heirs to the use of himself and his ed. Sugd. 132. successors, he is in by the statute in the right of his see. And as I cannot raise a present use to one out 2 D of his own seisin; so if I limit a contingent or | son stands seised by force of any fine, recovery, future use to one being at the time of limitation feoffment, bargain and sale, agreement or othernot seised, but after become seised at the time of wise; but yet the feme is to be restrained for the the execution of the contingent use, there is the reason aforesaid. same reason and the same law, and upon the same difference which I have put before. As if I covenant with my son, that, after his marriage, I will stand seised of land to the use of himself and his heirs; and, before marriage, I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute; like law of a bargain and sale. But if I had let to him for life only, then he should have been in for life only by the common law, and of the fee-simple by the statute. Now let me advise you of this, that it is only a matter of subtilty or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the ciding for de statute in course of possession; but it questions. is natural for the deciding of many causes and questions, as for warranties, actions, conditions, waivers, suspensions, and divers other provisos. This learning many For example; a man's farmer committed waste: after he in reversion covenanteth to stand seised to the use of his wife for life, and after to the use of himself and his heirs; his wife dies; if he be in of his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it. So if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of myself for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; but if I be in by the common law, it is doubtful. So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee, I. S. dieth. If I be in by the common law, I cannot waive my estate, having agreed to the feoffment; but if I am in by the statute, yet I am not remitted, because I come in by my own act: but I may waive my use, and bring an action presently; for my right is saved unto me by one of the savings in the statute. Where there is a seisin to the use of another, of the statute. Now on the other side it is to be seen, where is a seisin to the use of and yet it is our another person; and yet it is out of the statute which is in special cases upon the ground, wheresoever cestuy que use had remedy for the possession by course of common law, there the statute never worketh; and therefore if a disseisin were committed to a use, it is in him by the common law upon agreement. So if one enter as occupant to the use of another, it is in him till disagreement. So if a feme infeoff a man, causa matrimonii prælocuti, she hath remedy for the land again by course of the law; and, therefore, in those special cases the statute worketh not; and yet the words of the statute are general, where any per deciare a use, It remaineth to show what persons What persons may limit and declare a use: wherein may not and we must distinguish; for there are two kinds of declarations of uses, the one of a present use upon the first conveyance, the other upon a power of revocation or new declaration; the latter of which I refer to the division of revocation: now for the former. The king upon his letters patent may declare a use, though the patent itself implieth a use, if none be declared. If the king gives lands by his letters patent to I. S. and his heirs, to the use of I. S. for life, the king hath the inheritance of the use by implication of the patent, and no office needeth; for implication out of matter of record amounteth ever to matter of record. If the queen give land to I. S. and his heirs to the use of the church wardens of the church of Dale, the patentee is seised to his own use, upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII., and the use had returned to the feoffor and his heirs. A corporation may take a use without deed, as hath been said before; but can limit no use without deed. An infant may limit a use upon a feoffment, fine, or recovery, and he cannot countermand or avoid the use, except he avoid the conveyance: contrary, if an infant covenant in consideration of blood or marriage to stand seised to a use, the use is merely void. If an infant bargain and sell his land for money, for commons or teaching, it is good with averment; if for money, otherwise; if it be proved it is avoidable; for money recited and not paid, it is void; and yet in the case of a man of full age the recital sufficeth. cest, matter, If baron and feme be seised in the Vid. A. Beckright of the feme, or by joint purchase with's case, de during the coverture, and they join in fol. 57. a fine, the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone; but the use goeth, according to the limitation of law, unto the feme and her heirs; but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance as they concurred in; for the law accounteth all one, as if they joined; as if the baron and feme declare a use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs, ed. Sugd. 448, the use is good to I. S. in fee. See Gilb. Us. 449. And if upon exam ination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law. |