« AnteriorContinuar »
by the private conscience of the feoffee, or the general conscience of the realm, which is chancery.
The two former of which, because they be matters more thoroughly beaten, and we shall have occasion hereafter to handle them, we will not now dilate upon:
But the third we will speak somewhat of; both because it is a key to open many of the true reasons and learnings of uses, and because it tendeth to decide our great and principal doubts at this day.
Coke, solicitor, entering into his argument of Chudleigh's case, said sharply and fitly: “I will put never a case but it shall be of a use, for a use in law hath no fellow;" meaning, that the learning of uses is not to be matched with other learnings. And Anderson, chief justice, in the argument of the same case, did truly and profoundly
So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for that one is in course of law, the other is in course of conscience; and for a trust, which is the way to a use, it is exceedingly well defined by Azo, a civilian of great un-control the vulgar opinion collected derstanding: upon 5 E. IV. that there might be posFides est obligatio conscientiæ unius ad inten- sessio fratris of a use; for he said, that it was no
5 E. 4.7.
more but that the chancellor would consult with the rules of law, where the intention of the par
And they have a good division likewise of ties did not specially appear; and therefore the rights when they say there is
Jus precarium: Jus fiduciarium: Jus legitimum.
1. A right in courtesy, for the which there is no remedy at all.
The parts and
1 Rep. $8.
private conceit, which Glanvile, justice, cited in
27 H. 8, 9, 10,
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 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 three parts. opinion seemeth ever to be a prelude and foreThe first, that the feoffee will suffer runner to an act of Parliament touching uses; The parts. 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 Cor1 Rep. 88. estates 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 publish their opinion, though not directly upon the point adjudged, yet obiter as one of the reasons of their judgment, that a use of inheritance could not be limited to cease; and, again, that the limitation of a new use could not be to a stranger; ruling uses merely according to the ground of possession; it is worth the labour to examine that learning. By 3 H. VII. you may collect, that if the feoffees had been disseised by the common law, and an ancestor collateral of cestuy que use had released unto the disseisor, and his warranty had attached upon cestuy que use, yet the chancellor, upon this matter showed, would have no respect unto it, to compel the feoffees to
The third, that if the feoffee be disseised, and so the feoffor disturbed, the feoffee will re-enter, or bring an action to re-continue the possession; for that those three, pernancy of profits, execution of estates, and defence of the land, are the three points of the trust.
For the properties of a use, they are The properties. exceedingly well set forth by Fenner, Justice, in the same case; and they be three:
1. Uses, saith he, are created by confidence: 2. Preserved by privity, which is nothing else but a continuance of the confidence, without interruption: and,
3. Ordered and guided by conscience: either
5 E 4, 7.
execute the estate unto the disseisor: for there the case being, that cestuy que use in tail having made an assurance by fine and recovery, and by warranty which descended upon his issue, two of the judges held, that the use is not extinct; and Bryan and Hussey, that held the contrary, said, that the common law is altered by the new statute; whereby they admit, that by the common law that warranty will not bind and extinct a right of a use, as it will do a right of possession; and the reason is, because the law of collateral warranty is a hard law, and not to be considered in a court of conscience. In 5 E. IV. it is said, that if cestuy que use be at tainted, query, who shall have the land, for the lord shall not have the land; so as there the use doth not imitate the possession; and the reason is, because the lord hath a tenant in by title; for that is nothing to the supana, because the feoffor's intent was never to advance the lord, but only his own blood; and therefore the query of the book ariseth, what the trust and confidence of the feoffee did tie him to do, as whether he should not sell the land to the use of the feoffee's will, or in pios usus? So favourably they took the intent in those days, like as you may find in 37 H. VI. that if a man had appointed his use to one for life, the remainder in fee to another, and cestuy que use, for life had reSug. Gilb. 247. fused, because the intent appeared not B. Coup. to advance the heir at all, nor him in reversion, presently the feoffee should make the estate for life of him that refused, some ways to the behoof of the feoffor. But to proceed in some better order towards the disproof of this opinion of imitation, there be four points wherein we will examine the nature of uses.
37 H. 6, 36.
1. The raising of them.
1. In all these four you shall see apparently that uses stand upon their own reasons, utterly differing from cases of possession. I would have one case showed by men learned in the law, where there is a deed; and yet there needs a consideration; as for parole, the law adjudgeth it too light to give a use without consideration; but a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it: and, therefore, in 8 Reginæ it is solemnly argued, that a deed should raise a use without any other consideration. In the queen's case a false consideration, if it be of record, will hurt the patent, but want of consideration doth never hurt it; and yet they say that a use is but a nimble and light thing; and now, contrariwise, it seemeth to be weightier than any thing else: for you cannot weigh it up to raise it, neither by deed, nor deed enrolled, without the weight of a consideration; but you shall never find a reason
of this to the world's end, in the law but it is a reason of chancery, and it is this:
2 Roll. Abr.
PO 303, Rep. 409
Dy. 160. 337.
2 Vern. 239.
That no court of conscience will enforce donum gratuitum, though the intent appear never so clearly, where it is not executed, or sufficiently passed by law; but if money had been paid, and so a person damnified, or that it was for the establishment of his house, then it is a good matter in the chancery. So again I would see in all the law, a case where a man shall take by conveyance, be it by deed, livery, or word, that is not party to the grant: I do not say that the delivery must be to him that takes by the deed, for a deed may be delivery to one man to the use of another. Neither do I say that he must be party to the livery or deed, for he in the remainder may take though he be party to neither; but he must be party to the words of the grant; here again the case of the use goeth single, and the reason is, because a conveyance in use is nothing but a publication of the trust; and, therefore, so as the party trusted be declared, it is not material to whom the publication be. So much for the raising of uses. Now as to the preserving of them.
33 H. 6. 5.
2. There is no case in the common law wherein notice simply and nakedly is material to make a coven, or particeps criminis; and, therefore, if the heir, which is in by descent, infeoff one which had notice of the disseisin, if he were not a disseisor de facto, it is nothing: so in 33 H. VI. if a feoffment be made upon collusion, and that feoffee make a feoffment over upon good consideration, the collusion is discharged, and it is not material whether the second feoffee had notice or no. So as it is put in 14 H. VIII. if a sale be made in a market overt upon good consideration, although it be to one that hath notice that they are stolen goods, yet the property of a stranger is bound; though in the book before remembered, 35 H. VI. there be some opinion to the contrary, which is clearly no law; so in 31 E. III. if assets descend to the heir, and he alien it upon good consideration, although it be to one that had notice of the debt, or of the warranty, yet it is good enough. So 25 Ass. p. 1, if a man enter of purpose into my lands, to the end that a stranger which hath right, should bring his præcipe and evict the land, I may enter notwithstanding any such recovery: but if he enter, having notice that the stranger hath right, and the stranger likewise having notice of his entry, yet if it were not upon confederacy or collusion between them, it is nothing; and the reason of these cases is, because the common law looketh ne farther than to see whether the act were merely actus fictus in fraudem legis; and, therefore, wheresoever it findeth consideration given, it dis chargeth the coven.
But come now to the case of the use. and there it is otherwise, as it is in 14
3 Rep. 81.
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 anpurchaser shall stand seised to the answer, 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 amaritudinis, 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 feoffees will not 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 obits than to will the use of the land to certain persons and their heirs, so long as they shall pay the chantry priests their wages, and in default of payment, then to limit the use over to other persons and their heirs; and so, in case of forfeiture, through many degrees; and such conveyances are as ancient as R. II. his time.
3. For the transferring of uses there ring of uses. is no case in law whereby an action may be transferred, but the subpœna we see in case of use was always assignable; nay, farther, you find twice 27 H. VIII. fol. 20, pla. 9; and, again, fol. 30, and pla. 21, that a right of use may be transferred; for in the former case Montague maketh an objection, and saith, that a right of use cannot be given by fine, but to him that hath the possession; Fitzherbert answereth, Yes, well enough; query the reason, saith the book.
And in the latter case, where cestuy que use was infeoffed by the disseisor of the feoffee, and made a feoffment over, Englefield doubted whether the second feoffee should have the use. Fitzherbert said, "I marvel you will make a doubt of it, for there is no doubt but the use passeth by the feoff ment to the stranger, and, therefore, this question needeth not to have been made." So the great difficulty in 10 Reginæ, Delamer's case, where the case was in effect, there being tenant in tail of a use, the remainder in fee, tenant in tail made a feoffment in fee, by the statute of 1 R. III. and that feoffee infeoffed him in the remainder of the use, who made a feoffment over; and there question being made, whether the second feoffee should have the use in remainder, it is well said, that the second feoffee must needs have the best right in conscience; because the first feoffee claimeth nothing but in trust, and the cestuy que use cannot claim it against his sale; but the reason is apparent, as is touched before, that a use in esse was but a thing in action, or in suit to be brought in court of conscience; and whether the subpana was to be brought against the feoffee in possession to execute the estate, or against the feoffee out of possession to recontinue the estate, always the subpoena might be transferred; for still the action at the common law was not stirred, but remained in the feoffee; and so no mischief of maintainance or transferring rights.
1 Rep. 121. 129.
14 H. 8. 4.
4. Now for determining and extinguishing of uses, we put the case of meat of uses. collectoral warranty before; add to that, the notable case of 14 H. VIII., Halfpenny's case, where this very point is in the principal case; for a right out of land, and the land itself, in case of possession, cannot stand together, but the rent shall be extinct; but there the case is, that the use of the land and the use of the rent may stand well enough together; for a rent charge was granted by the feoffee to one that had notice of the use, and ruled, that the rent was to the ancient use, and both uses were in esse simul et semel; and though Brudenell, chief justice, urged the ground of possession to be otherwise, yet, he was overruled by other three justices; and Brooke said unto him, he thought he argued much for his plea- Diges' case, sure. And to conclude, we see that things may be avoided and determined by the ceremonies and acts, like unto those by which they are created and raised: that which passeth by livery ought to be avoided by entry; that which passeth by grant, by claim; that which passeth by way of charge, determineth by way of discharge; and so a use which is raised but by a declaration or limitation may cease by words of declaration or limitation, as the civi law saith, in his magis consentaneum est, quam ut iisdem modis res dissolvantur quibus constituantur.
Co. Lit. 237.
I Rep. 174.
For the inception and progression of uses, I have, for a precedent in them, and progress of 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 fruclus
First, in the civil law. Contra Sigon.
1. cap. 5.
Inst. 1, 2.
Domat, tom 3.
et dominium is, with them, as with us, particular tenancy and inheritance. But that which resembleth the use most is, de Judicus, lib. fidei commisseo, and, therefore, you shall find, in Justinian, lib. 2, that they had a form in testaments, to give inheritance to one to the use of another, Hæredem constituo Caium; rogo autem te, Caie, ut hæreditatem restituas Scio. And the text of the civilians saith, that for a great time, if the heir did not as he was required, cestuy que use had no remedy at all, until, about the time of Augustus Cæsar, there grew in custom a flattering form of trust, for they penned it thus: Rogo te per salutem Augusti, or per fortunam Augusti, &c. Whereupon Augustus took the breach of trust to sound in derogation of himself, and made a rescript to the prætor to give remedy in such cases; whereupon, within the space of a hundred years, these trusts did spring and speed so fast, as they were forced to have a particular chancellor only for uses, who was called prætor fidei-commissarius; and not long after, the inconvenience of them being found, they resorted unto a remedy much like unto this statute; for, by two decrees of senate, called senatus consultum Trebellianum et Pegasianum, they made cestuy que use to be heir in substance. I have sought, likewise, whether there be any thing which maketh with them in our law, and I find that Periam, chief baron, in the argument of Chudleigh's case, compareth them to copyholders, and aptly for many respects.
remedy against the feoffee was but by the subpæna; and the remedy against strangers to the feoffee by subpæna.
mencement and common law, 27. 9, 10.
Now for the causes whereupon uses The cause of were put in practice: Master Coke, in them. his reading, doth say well, that they were produced sometimes for fear, and many times for fraud. But I hold that neither of these cases were so much the reasons of uses, as another reason in the beginning, which was, that the lands by the common law of England were not testamentary or devisable; and of late years, since the statute, the case of the conveyance for sparing of purchases and execution of estates; and now, last of all, an express liberty of will in men's minds, affecting to have assurances of their estates and possessions to be revocable in their own times, and irrevocable after their own times. Now for the commencement and pro- Their com ceeding of them, I have considered what it hath been in course of common law, and what it hath been in course of statute. For the common law, the conceit of Shelley, in 24 H. VIII., and of Pollard, in 27 H. VIII., seemeth to me to be without ground, which was, that the use succeeded the tenure : for that the statute of Quia emptores terrarum, which was made 18 E. I. had taken away the tenure between the feoffor and the feoffee, and left it to the lord paramount; they said that the feoffment, being then merely without consideration, should therefore intend a use to the feoffor, which 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 in use, and the limitation rejected.
Second, in our law.
7 E. 4. 16.
And therefore I do judge that the intendment of a use to the feoffor, where 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 firma; 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 so the chancery made question to give remedy, until made the intendment towards the use, and put the uses grew more general, and the chancery more proof upon the purchaser. eminent; and then they grew to have remedy in conscience but they could never maintain any manner of remedy at the common law, neither against the feoffee, nor against strangers; but the
37 H. S. 9, 10 Doctor & Stud.
Mue part 2, c 22.
And therefore as uses do carry at the common law in no reason, for whatsoever is not by statute, nor against law, may be said to be at the common law; and both
the general trust and the special were things not | France, which drew most of the nobility to be prohibited by law, though they were not remedied by law; so the experience and practice of uses were not ancient; and my reasons why I think so are these four:
First, I cannot find in any evidence before King R. II. his time, the clause ad opus et usum, and the very Latin of it savoureth of that time; for in ancient time, about E. I. and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see partly by Bracton's writing and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; whereas the phrase ad opus et usum, as to the words ad opus, is a barbarous phrase, and like enough to be in the penning of some chaplain that was not much past his grammar, when he found opus et usus coupled together, and (preceding) that they govern an ablative case; as they do indeed since this statute, for they take away the land and and so put them into a conveyance.
Secondly, I find in no private act of attainder, in the clause of forfeiture of lands, the words, "which he hath in possession or in use," until about E. IV.'s reign.
Thirdly, I find the word "use" in no statute until 7 R. II., cap. 12., Of Provisors, and in 13 R., Of Mortuaries.
8 E. 4, 5.
Fourthly, I collect out of Choke's speech in 8 E. IV., where he saith, that by the advice of all the judges it was thought that the subpoena did not lie against the heir of the feoffee which was in by law, but that the cestuy que use was driven to bill in Parliament, so that uses at that time were but in their infancy; for no doubt at the first the chancery made difficulty to give any remedy at all, but to leave to the particular conscience of the feoffee: but after the chancery grew absolute, as may appear by the statute made in H. VI. that complainants in chancery should enter into bond to prove their suggestions, which showeth that the chancery at that time began to embrace too far, and was used for vexation; yet, nevertheless, it made scruple to give remedy against the heir, being in by act in law, though he were privy; so that it cannot be that uses had been in any great continuance when they made that question; as for the case of matrimonii prælocuti, it hath no affinity with uses; for wheresoever there was remedy at the common law by action, it cannot be intended to be of the nature of a use.
absent from their possessions; and partly during the time of the trouble and civil wars between the two houses about the title of the crown. Now to conclude the progression of second course of uses in courts of statutes, I do note three special points.
1. That a use had never any force at all at the common law, but by statute law.
2. That there was never any statute made directly for the benefit of cestuy que use, as that the descent of a use should toll an entry, or that a release should be good to the pernor of the profits, or the like; but always for the benefit of strangers, and third persons against cestuy que use, and his feoffees: for though by the statute of R. III., he might alter his feoffee, yet that was not the scope of the statute, but to make good his assurance to third persons, and the other came in but ex obliquo.
50 E. 3, c. 6.
3. That the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intent general and special: so 50 E. III. is the first statute I find wherein mention is made of the taking of profits by one, where the estate in law is in another.
For as for the opinion in 27 H. VIII., that in case of the statute of Marlebridge, the froffor took the profits, it is but a conceit: for the law is at this day, that if a man infeoff his eldest son, within age, and without consideration, although the profits be taken to the use of the son, yet it is a feoffment within the statute. And for the statute De religiosis 7 E. I., which prohibits generally that religious persons should not purchase arte vel in genio, yet it maketh no mention of a use, but it saith colore donationis, termini, vel alicujus tituli, reciting there three forms of conveyances, the gift, the long lease, and feigned recovery; which gift cannot be understood of a gift to a stranger to their use, for that same to be holpen by 15 R. II. long after.
15 R. 2, c. 5.
50 E. 3, c. 6.
But to proceed, in 50 E. III., a statute was made for the relief of creditors against such as made covinous gifts of their lands and goods, and conveyed their bodies into sanctuaries, there living high upon other men's goods; and, therefore, that statute made their lands and goods liable to their creditors' executions in that particular case, if they took the profits.
In 1 R. II. c. 9, a statute was made for relief of those as had right of action, against such as had removed the tenancy of the præcipe from them, sometimes by infeoffing great persons, for maintenance; and sometimes by feoffments to other persons, whereof the defendants could have no
And for the book commonly vouched of 8 Ass. where Earl calleth the possession of a conuzee upon a fine levied by consent and entry in autre droit, and 44 of E. III., where there is mention of the feoffors that sued by petition to the king, they be 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. bis time; and the great multiplying and overspreading of them was partly during the wars in
recovery good in all actions against the first feoffors, so as they took the profits, and so as the defendants bring their actions within a year of their