« AnteriorContinuar »
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.
Broughton v. Langley. Salk, 079. 1 Lutw. 823. Contr. Burchett v. Durdant.
2 Ventr. 312.
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. 2 R. Abr. 788. How v. Dixe. 1 Sid. 26.
The words that are common to both are words expressing the conveyance whereby the use ariseth, of which words those that breed any question are, agreement, will, otherwise, whereby some have inferred that uses might be raised by agreement parole, so there were a consideration of money or other matter valuable; for it is expressed in the words before, bargain, sale, and contract, but of blood, or kindred; the error of which collection appeareth in the word immediately following, namely, will, whereby they might as well include, that a man seised of land might raise a use by will, especially to any of his sons or kindred, where there is a real consideration; and by that reason, mean, betwixt this statute and by the statute of 32 of wills, lands were devisable, especially to any man's kindred, which was clearly otherwise; and, therefore, those words were put in, but in regard of uses formerly transferred by those conveyances; for it is clear that a use in esse by simple agreement, with consideration, or without, or likewise by will, might be transferred; and there was a person seised to 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
of the statute crosseth that which was to exccute 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.
Co! emar v.
The purview hath two parts: the first, operatio statuti, the effect that the dance 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 Ro Abr. 750. 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 other maketh difference of possession as remainder; all other differences of estate are but accidents, as shall be said hereafter. These two the statute meant to take hold of, and at the words, remainder and reverter, it stops: it adds not words, right, title, or possibility, nor it hath not general words, or otherwise; whereby it is most plain, that the statute meant to execute no inferior uses to remainder or reverter: that is to say, no possibility or contingencies, but estates, only such as the feoffees might have executed by conscience made. Note, also, that the very letter of the statute doth take notice of a difference between a use in remainder and a use in reverter; which though it cannot be properly, because it doth not depend upon particular estates, as remainders do, neither did then before the statute draw any tenures as reversions do; yet, the statute intends there is a dif ference when the particular use, and the use limited upon the particular use, are both new uses, in which case it is a use in remainder; and where the particular use is a new use, and the remnant of the use is the old use, in which case it is a use in reverter.
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. VI. 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 tenan. cy 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 secon case.
The second case of the joint feoffees 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 expla nation 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
The second word is clearly, which Haly v. Ryley. seems properly and directly to meet A 331, 332. with the conceit of scintilla juris, as Neale, 2 Mod. well as the words in the preamble of extirpating and extinguishing such feoffnents, so as their estate is clearly
Dred 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, but not by that feoffment upon which the statute hath wrought.
The third case. V. Cooke. 1 Mod. 223.
Now followeth the third case of the statute, touching execution of rents; Ben & 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, or 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.
former they inserted into this law, and the third they distinguished into a law apart, but without any preamble as may appear, being but a proviso 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 rither 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.
ried to cestuy que use, by the general words in the body of the law, scilicet, that the feoffee's estate, right, title, and possession, &c.
For the two provisos on the part of the tertenant, they both concern the saving of strangers from prejudice, &c.
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 cestuy que use, and what not.
2. The interruption of uses. 3. The executing 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 feoffor 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 dis. is 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.
Contrary law of tenant in tail; for, if I give land by tail in deed, since the
So if the lord of whom the land is held be ine feoffed 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
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 subpena 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 nim 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.
Like law, if, before the statute, I give land to I. S. pour autr. 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 2. 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 de 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.
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 feoffment 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