« AnteriorContinuar »
Secon!!y, alfirmatively. I Rep 121. Chudleigh's Case, Poph. 71, 72. case, Plow, 313. 32. Dyer, 183.
1 Rep SS.
So is now we are come by negatives to the by the private conscience of the feoffee, or the
affirmative, what a use is, agreeable to general conscience of the realm, which is the definition in Plowden, 352. In chancery.
Barnard and Delamer's case, where it The two former of which, because they be Delumer's is said :--that
matters more thoroughly beaten, and we shall have Use is a trust reposed in any person occasion hereafter to handle them, we will not
by the terre-tenant, that he may suffer now dilate upon: him to take the profits, and that he will perform But the third we will speak somewhat of; both His intent.
because it is a key to open many of the true But it is a shorter speech to say, that
reasons and learnings of uses, and because it
tendeth to decide our great and principal doubts Usus est dominium fiduciarium: Use is an at this day. owner's life in trust.
Coke, solicitor, entering into his argument of So that usus et status, sive possessio, potius dif- Chudleigh's case, said sharply and fitly: “ I will ferunt secundum rationem fori, quam secundum put never a case but it shall be of a use, for a use
in law hath no fellow;" meaning, that the learnnaturam rei, for that one is in course of law, the other is in course of conscience; and for a trust, ing of uses is not to be matched with other learnwhich is the way to a use, it is exceedingly ment of the same case, did truly and profoundly
ings. And Anderson, chief justice, in the arguwell defined by Azo, a civilian of great un
control the vulgar opinion collected derstanding :
5 E. 4. 7.
upon 5 E. IV. that there might be pose Fides est obligatio conscientiæ unius ad inten- sessio fratris of a use; for he said, that it was no tionem alterius.
more but that the chancellor would consult with
the rules of law, where the intention of the parAnd they have a good division likewise of ties did not specially appear; and therefore the rights when they say there is
private conceit, which Glanvile, justice, cited in Jus precarium: Jus fiduciarium: Jus legitimum. the 42 Reginæ, in the case of Corbet
and Corbet, in the Common Pleas, of 1. A right in courtesy, for the which there is one of Lincoln's Inn, whom he named not, but no remedy at all.
seemed well to allow of the opinion, is not 2. A right in trust, for which there is a remedy, sound; which was, that a use was but a limitabut only in conscience.
tion, and did ensue the nature of a possession. 3. A right in law.
This very conceit was set on foot in
27 H. 8, 9, 10. And so much of the nature and definition of 27 H. VIII. in the Lord Darcie's case,
in which time they began to heave at uses: for It followeth to consider the parts and thereafter the realm had many ages together put properties of a properties of a use: wherein it appear- in action the passing of uses by will, they began
eth by the consent of all books, and to argue that a use was not devisable, but that it was distinctly delivered by Justice Walmsley, it did ensue the nature of the land: and the same in 36 of Elizabeth: That a trust consisteth upon year after this statute was made; so that this
opinion seemeth ever to be a prelude and foreThe first, that the feoffee will suffer runner to an act of Parliament touching uses; the feoffer to take the profits.
and if it be so meant now, I like it well: but in The second, that the feoffee upon request of the mean time the opinion itself is to be rejected ; the feoffor, or notice of his will, will execute the and because, in the same case of Corestates to the feoffor, or his heirs, or any other at bet and Corbet, three reverend judges his direction.
of the Court of Common Pleas did deliver and The third, that if the feoffee be disseised, and publish their opinion, though not directly upon so the feoffor disturbed, the feoffee will re-enter, the point adjudged, yet obiter as one of the rea. or bring an action to re-continue the possession; sons of their judgment, that a use of inheritance for that those three, pernancy of profits, execu- could not be limited to cease; and, again, that the tion of estates, and defence of the land, are the limitation of a new use could not be to a stranger; three points of the trust.
ruling uses merely according to the ground of For the properties of a use, they are possession; it is worth the labour to examine
exceedingly well set forth by Fenner, that learning. By 3 H. VII. you may collect, justice, in the same case; and they be three: that if the feoffees had been disseised by the
1. Uses, saith he, are created by confidence: common law, and an ancestor collateral of cestuy
2. Preserved by privity, which is nothing else que use had released unto the disseisor, and his but a continuance of the confidence, without in- warranty had attached upon cestuy que use, yet terruption: and,
the chancellor, upon this matter showed, would 3. Ordered and guided by conscience: either have no respect unto it, to compel the feoflees to
The parts and
1 Rep. S&S
2 Roll. Abr.
execute the estate unto the disseisor: for there of this to the world's end, in the law : but it is a
in a court of conscience. In 5 E. IV. grant: I do not say that the delivery must be to 5 E 4,7.
it is said, that if cesłuy que use be at him that takes by the deed, for a deed may be tainted, query, who shall have the land, for the delivery to one man to the use of another. Neilord shall not have the land; so as there the use ther do I say that he must be party to the livery doth not imitate the possession; and the reason or deed, for he in the remainder may take though is, because the lord hath a tenant in by title; for he be party to neither; but he must be party to that is nothing to the supæna, because the fe- the words of the grant; here again the case of the offor's intent was never to advance the lord, but use goeth single, and the reason is, because a only his own blood; and therefore the query of conveyance in use is nothing but a publication of the book ariseth, what the trust and confidence the trust; and, therefore, so as the party trusted of the feoffee did tie him to do, as whether he be declared, it is not material to whom the publishould not sell the land to the use of the feoffee's cation be. So much for the raising of uses. will, or in pios usus? So favourably they took Now as to the preserving of them. the intent in those days, like as you may find in 2. There is no case in the common law wherein
37 H. VI. that if a man had appointed notice simply and nakedly is material to make a 37 H. 6, 36.
his use to one for life, the remainder in coven, or particeps criminis ; and, therefore, if fee to another, and cestuy que use, for life had re- the heir, which is in by descent, infeoff one which
fused, because the intent appeared not had notice of the disseisin, if he were not a dis
to advance the heir at all, nor him in seisor de facto, it is nothing: so in 33 reversion, presently the feoffee should make the H. VI. if a feoffment be made upon estate for life of him that refused, some ways to collusion, and that feoffee make a feoffment over the behoof of the feoffor. But to proceed in upon good consideration, the collusion is dissome better order towards the disproof of this charged, and it is not material whether the second opinion of imitation, there be four points wherein feoffee had notice or no. So as it is put in 14 H. we will examine the nature of uses.
VIII. if a sale be made in a market overt upon 1. The raising of them.
good consideration, although it be to one that hath 2. The preserving of them.
notice that they are stolen goods, yet the property 3. The transferring of them.
of a stranger is bound; though in the book before 4. 'The extinguishing of them.
remembered, 35 H. VI. there be some opinion to 1. In all these four you shall see apparently the contrary, which is clearly no law; so in 31 that uses stand upon their own reasons, utterly E. III. if assets descend to the heir, and he alien differing from cases of possession. I would have it upon good consideration, although it be to one one case showed by men learned in the law, that had notice of the debt, or of the warranty, yet where there is a deed; and yet there needs a it is good enough. So 25 Ass. p. 1, if a man consideration; as for parole, the law adjudgeth it enter of purpose into my lands, to the end that a too light to give a use without consideration; stranger which hath right, should bring his but a deed ever in law imports a consideration, præcipe and evict the land, I may enter notwith
Ι because of the deliberation and ceremony in the standing any such recovery: but if he enter, confection of it: and, therefore, in 8 Reginæ it is having notice that the stranger hath right, and the solemnly argued, that a deed should raise a use stranger likewise having notice of his entry, yet without any other consideration. In the queen's if it were not upon confederacy or collusion becase a false consideration, if it be of record, will tween them, it is nothing; and the reason of these hurt the patent, but want of consideration doth cases is, because the common law looketh nc never hurt it; and yet they say that a use is but a farther than to see whether the act were merely nimble and light thing; and now, contrariwise, actus fictus in fraudem legis; and, therefore, it seemeth to be weightier than any thing else : wheresoever it findeth consideration given, it dis for you cannot weigh it up to raise it, neither by chargeth the coven. deed, nor deed enrolled, without the weight of a But come now to the case of the use. consideration ; but you shall never find a reason and there it is otherwise, as it is in 14
Sug. Gilb. 217.
33 H. 6. 5.
Rep. 81. 1 Roll. Abr. 779.
The transferring of uses.
14 H. & 4.
H. VIII. and 28 H. VIII. and divers other books; Glanvile, justice, said, that he could never find, which prove that if the feoffee sell the land for neither in book, nor evidences of any antiquity, good consideration to one that hath notice, the a contingent use limited over to a stranger; I an
purchaser shall stand seised to the an- swer, first, it is no marvel that you find no case cient use; and the reason is, because before E. IV. his time, of contingent uses, where
the chancery looketh farther than the there be not six of uses in all; and the reason, common law, namely, to the corrupt conscience no doubt, was, because men did choose well of him that will deal with the land, knowing it in whom they trusted, and trust was well observed; equity to be another's; and, therefore, if there and at this day, in Ireland, where uses are in were radix amariludinis, the consideration purgeth practice, cases of uses come seldom in question, it not, but it is at the peril of him that giveth it: except it be sometimes upon the alienations of so that a consideration, or no consideration, is an tenants in tail by fine, that the feoflees will net issue at the common law; but notice, or no notice, be brought to execute estates to the disinheritance is an isue in the chancery. And so much for the of ancient blood. But for experience of conpreserving of uses.
tingent uses, there was nothing more usual in 3. For the transferring of uses there obits than to will the use of the land to certain
is no case in law whereby an action persons and their heirs, so long as they shall pay may be transferred, but the subpæna we see in the chantry priests their wages, and in default of case of use was always assignable; nay, farther, payment, then to limit the use over to other peryou find twice 27 H. VIII. fol. 20, pla. 9; and, sons and their heirs; and so, in case of forfeiture, again, fol. 30, and pla. 21, that a right of use through many degrees; and such con
| Rep. !21. 122 may be transferred; for in the former case Mon- veyances are as ancient as R. II. his tague maketh an objection, and saith, that a right time. of use cannot be given by fine, but to him that 4. Now for determining and extin- The extinguisto hath the possession; Fitzherbert answereth, Yes, guishing of uses, we put the case of neut al vses. well enough; query the reason, saith the book. collectoral warranty before ; add to that, the nola
And in the latter case, where cestuy que use was ble case of 14 H. VIII., Halfpenny's infeoffed by the disseisor of the feoffee, and made case, where this very point is in the a feoffment over, Englefield doubted whether the principal case; for a right out of land, and the second feoffee should have the use. Fitzherbert land itself, in case of possession, cannot stand said, “I marvel you will make a doubt of it, for together, but the rent shall be extinct; but there there is no doubt but the use passeth by the feofr- the case is, that the use of the land and the use ment to the stranger, and, therefore, this question of the rent may stand well enough together; for needeth not to have been made.” So the great a rent charge was granted by the feoffee to one difficulty in 10 Reginæ, Delamer's case, where that had notice of the use, and ruled, that the the case was in effect, there being tenant in tail rent was to the ancient use, and both uses were of a use, the remainder in fee, tenant in tail in esse simul et semel; and though Brudenell, made a feoffment in fee, by the statute of 1 R. chief justice, urged the ground of possession to III. and that feoffee infeoffed him in the remain- be otherwise, yet, he was overruled by other three der of the use, who made a feoffment over; and justices; and Brooke said unto him, he there question being made, whether the second thought he argued much for his plea- Dicces case, feoffee should have the use in remainder, it is sure. And to conclude, we see that well said, that the second feoffee must needs things may be avoided and determined by the have the best right in conscience; because the ceremonies and acts, like unto those by which first feoffee claimeth nothing but in trust, and the they are created and raised: that which passeth cestuy que use cannot claim it against his sale; but by livery ought to be avoided by entry; that the reason is apparent, as is touched before, that which passeth by grant, by claim; that which a use in esse was but a thing in action, or in suit passeth by way of charge, determineth by way to be brought in court of conscience; and whether of discharge; and so a use which is raised but the subpæna was to be brought against the feoffee by a declaration or limitation may cease by in possession to execute the estate, or against the words of declaration or limitation, as the civil feoffee out of possession to recontinue the estate, law saith, in his magis consentaneum est, quan always the subpæna might be transferred; for ut iisdem inodis res dissolvantur quibus constistill the action at the common law was not stirred, tuantur. but remained in the feoffee; and so no mischief For the inception and progression of of maintainance or transferring rights.
uses, I have, for a precedent in them, att progresas cil And if any use being but in right searched other laws, because states
may be assigned, and passed over to and commonwealths have common accidents; a stranger, a multo fortiori, it may be limited to a and I find, in the civil law, that that which stranger upon the privity of the first conveyance, cometh nearest in name to the use is nothing like as shall be handled in another place; and whereas in matter, which is usus fructus; for usus fructus
I Rep. 176.
First, in the civil law,
The causn of
1. cap. 5.
last. 1. 2.
. of common law,
Second, in our law.
el dominium is, with them, as with us, particular remedy against the feoffee was but by the subpena;
tenancy and inheritance. But that and the remedy against strangers to the feoflee by
which resembleth the use most is, subprena. de Judicis, lib. fidei commisseo, and, therefore, you Now for tbe causes whereupon uses
shall find, in Justinian, lib). 2, that they were put in practice: Master Coke, in them. had a form in testaments, to give inheritance to his reading, doth say well, that they were proone to the use of another, Hæredem constituo Caium; duced sometimes for fear, and many times for
rogo autem te, Caie, ut hæreditatem resti- fraud. But I hold that neither of these cases tuas Scio. And the text of the civilians were so much the reasons of uses, as another rea
saith, that for a great time, if the heir son in the beginning, which was, that the lands did not as he was required, cesłuy que use had no by the common law of England were not testaremedy at all, until, about the time of Augustus mentary or devisable; and of late years, since the Cæsar, there grew in custom a flattering form of statute, the case of the conveyance for sparing of trust, for they penned it thus: Rogo te per salutem purchases and execution of estates; and now, Augusti, or per fortunam Augusti, &c. Where- last of all, an express liberty of will in men's upon Augustus took the breach of trust to sound minds, affecting to have assurances of their esin derogation of himself, and made a rescript to tates and possessions to be revocable in their own the prætor to give remedy in such cases; where- times, and irrevocable after their own times. upon, within the space of a hundred years, these Now for the commencement and pro- Their comtrusts did spring and speed so fast, as they were ceeding of them, I have considered pencement ana forced to have a particular chancellor only for what iť hath been in course of common Sirus, in course uses, who was called prætor fidei-commissarius ; law, and what it hath been in course of Ul. Dacreto. and not long after, the inconvenience of them statute. For the common law, the conbeing found, they resorted unto a remedy much ceit of Shelley, in 24 H. VIII., and of Pollard, in like unto this statute; for, by two decrees of 27 H. VIII., seemeth to me to be without ground, senate, called senatus consullum Trebellianum et which was, that the use succeeded the tenure : Pegasianum, they made cestuy que use to be heir for that the statute of Quia emptores terrarum, in substance. I have sought, likewise, whether which was made 18 E. I. had taken away the te
there be any thing which maketh with nure between the feoffor and the feoffee, and left
them in our law, and I find that Periam, it to the lord paramount; they said that the feoffchief baron, in the argument of Chudleigh's case, ment, being then merely without consideration, compareth them to copyholders, and aptly for should therefore intend a use to the feoffor, which many respects.
cannot be; for, by that reason, if the feoffment First, because, as a use seemeth to be an here before the statute had been made tenendum de capiditament in the court of chancery, so the copyhold talibus dominis, as it might be, there should have seemeth to be an hereditament in the lord's court. been a use unto the feoffor before that statute.
Secondly, this conceit of limitation hath been And again, if a grant had been of such things as troublesome in copyholders, as well as in uses ; consist in tenure, as advowsons, rents, villains, for it hath been of late days questioned, whether and the like, there should have been a use of them, there should be dowers, tenancies by the courtesy, wherein the law was quite contrary ; for after the intails, discontinuances, and recoveries of copy- time that uses grew common, yet it was, neverholds, in the nature of inheritances, at the com- theless, a great doubt whether things that did lie mon law; and still the judgments have weighed, in grant, did not carry a consideration in themthat you must have particular customs in copy- selves because of the deed. holds, as well as particular reasons of conscience And therefore I do judge that the inin use, and the limitation rejected.
tendment of a use to the feoffor, where Shortridges And thirdly, because they both grew to strength the feoffment was without considera- Salk. 678. and credit by degrees ; for the copyholder first tion, grew long after, when uses waxed general ; had no remedy at all against the lord, and were as and for this reason, because when feoffments were tenancy at will. Afterwards it grew to have re-made, and that it rested doubtful whether it were medy in chancery, and afterwards against their in use or in purchase, because purchases were lords by trespass at the common law; and now, things notorious, and trusts were things secret, lastly, the law is taken by some, that they have the chancellor thought it more convenient to put remedy by ejectione firmæ ; without a special cus- the purchaser to prove his confidence, than the tom of leasing. So no doubt in uses : at the first feoffor and his heirs to prove the use; and su the chancery made question to give remedy, until made the intendment towards the use, and put thu uses grew more general, and the chancery more proof upon the purchaser. eminent; and then they grew to have remedy in And therefore as uses do carry at the 37 4. 9. 9, 10 conscience : but they could never maintain any common law in no reason,
for whatsomanner of remedy at the common law, neither ever is not by statute, nor against law, part 2, o 22. against the teoffee, nor against strangers; but the may be said to be at the common law; and hold
7 E. 4. 16.
8 E. 4, 5.
the general trust and the special were things not | France, which drew most of the nobility to be probibited by law, though they were not remedied absent from their possessions; and partly during by law; so the experience and practice of uses the time of the trouble and civil wars between the were not ancient; and my reasons why I think two houses about the title of the crown. so are these four:
Now to conclude the progression of second coarse of First, I cannot find in any evidence before King uses in courts of statutes, I do note saules R. II. his time, the clause ad opus et usum, and three special points. the very Latin of it savoureth of that time; for in 1. That a use had never any force at all at the ancient time, about E. I. and before, when law- common law, but by statute law. yers were part civilians, the Latin phrase was 2. That there was never any statute made dimuch purer, as you may see partly by Bracton's rectly for the benefit of cestuy que use, as that the writing and by ancient patents and deeds, and descent of a use should toll an entry, or that a rechietly by the register of writs, which is good La-lease should be good to the pernor of the profits, tin; whereas the phrase ad opus et usum, as to the or the like; but always for the benefit of stranwerds ad opus, is a barbarous phrase, and like gers, and third persons against cestuy que use, and enough to be in the penning of some chaplain that his feoffees : for though by the statute of R. III., was not much past his grammar, when he found he might alter his feoffee, yet that was not the opus et usus coupled together, and (preceding) that scope of the statute, but to make good his assurthey govern an ablative case; as they do indeed ance to third persons, and the other came in but ex since this statute, for they take away the land and obliquo. and so put them into a conveyance.
3. That the special intent unlawful and covinSecondly, I find in no private act of attainder, ous was the original of uses, though after it inin the clause of forfeiture of lands, the words, duced to the lawful intent general and
50 E. 3, c. 6. " which he hath in possession or in use," until special : so 50 E. III. is the first staabout E. IV.'s reign.
tute I find wherein mention is made of the taking Thirdly, I find the word “use" in no statute of profits by one, where the estate in law is in until 7 R. II., cap. 12., Of Provisors, and in 13 another. R., Or Mortuaries.
For as for the opinion in 27 H. VIII., that in Fourthly, I collect out of Choke's case of the statute of Marlebridge, the froffor took
speech in 8 E. IV., where he saith, that the profits, it is but a conceit: for the law is at this by the advice of all the judges it was thought that day, that if a man infeoff his eldest son, within the subpæna did not lie against the heir of the age, and without consideration, although the profeoffee which was in by law, but that the cestuy que fits be taken to the use of the son, yet it is a feoffulse was driven to bill in Parliament, so that uses ment within the statute. And for the statute De at that time were but in their infancy; for no religiosis 7 E. I., which prohibits generally that doubt at the first the chancery made difficulty to religious persons should not purchase arte vel in give any remedy at all, but to leave to the parti- genio, yet it maketh no mention of a use, but it cular conscience of the feoffee: but after the chan- saith colore donationis, termini, vel alicujus tituli, cery grew absolute, as may appear by the statute reciting there three forms of conveyances, the gist, made in H. VI. that complainants in chancery the long lease, and feigned recovery; which gift should enter into bond to prove their suggestions, cannot be understood of a gift to a stranger to their which showeth that the chancery at that time be- use, for that same to be holpen by 15 gan to embrace too far, and was used for vexa- R. II. long after. tion; yet, nevertheless, it made scruple to give But to proceed, in 50 E. III., a staremedy against the heir, being in by act in law, tute was made for the relief of creditors though he were privy; so that it cannot be that against such as made covinous gifts of their lands uses had been in any great continuance when they and goods, and conveyed their bodies into sanc. inade that question; as for the case of matrimonii tuaries, there living high upon other men's goods; prælocuti, it hath no affinity with uses; for where- and, therefore, that statute made their lands and soever there was remedy at the common law by goods liable to their creditors' executions in that action, it cannot be intended to be of the nature particular case, if they took the profits. of a use.
In 1 R. II. c. 9, a statute was made for relief And for the book commonly vouched of 8 Ass. of those as had right of action, against such as where Earl calleth the possession of a conuzee had removed the tenancy of the præcipe from them, upon a fine levied by consent and entry in autre sometimes by infeoffing great persons, for maindroit, and 44 of E. III., where there is mention of tenance; and sometimes by feoffments to other the feoffors that sued by petition to the king, they persons, whereof the defendants could have no lie but implications of no moment. So as it ap- notice; and, therefore, the statute maketh the peareth the first practice of uses was about R. II. recovery good in all actions against the first feoffbis time; and the great multiplying and over- ors, so as they took the profits, and so as the despreading of them was partly during the wars in Ifendants bring their actions within a year of their
15 R. 2, c. 5.
50 E. 3, c. 6.