The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 8

THE LATER LAW OF REAL PROPERTY

AFTER THE STATUTE OF USES

Bacon, in a well-known passage, declared that the Statute of Uses was “the most perfectly and exactly conceived and penned of any law in the book . . . the best pondered in all the words and clauses of it of any statute that I find”. Anyone who reads the statute will be led to the same conclusion. An act of wide-sweeping scope, it is worded with care; after the fashion of the time, it contains a clear exposé de motifs in the preamble indicating its general objects; the first section enacts a clear and general rule, based on a tendency long apparent in legislation; this rule is unencumbered with exceptions and provisos, and (unlike previous acts) extends to all uses possible at that time, and executes them for all purposes; succeeding clauses foresee, and provide for, the situations arising under the operation of clause one. No statute before 1536 shows such evident signs of thoughtful care, and such clear and logical arrangement.

The objects of the act were obvious. First, it aimed at combining equitable and legal ownership and abolishing the screen of feoffees to use. In this it succeeded. No use, at this time, could subsist save upon the seisin of feoffees, and the statute successfully executed all uses. Secondly, it aimed at restoring publicity in dealings with land. The Statute of Enrolments1 was passed because it was realised that the use on a bargain and sale in favour of the bargainee who had paid the purchase money would be executed by the statute; to prevent this being employed as a secret conveyance, such bargains and sales were to be enrolled. Other conveyances were at common law and required livery of seisin. It is true that under the statute it was possible for legal estates to spring and shift in various ways but the general aim of publicity was attained, for it was no longer possible for a person in apparent enjoyment of land to escape the legal consequences of ownership by saying that the legal title was elsewhere. Once again, the statute attained its object. Two other aims were also realised, although later legislation decided that they were in fact undesirable. The virtual prevention of the devise of land was in fact an attempt to put the clock back a century or more, and the statute of wills soon recognised that this was impossible. The preservation of the incidents of tenure, achieved by the statute, had over a century of extended life; they, too, were abandoned in 1660.1

THE ATTITUDE OF THE COMMON LAWYERS

The common lawyers had a difficult situation before them, but one rich with possibilities. For something like a century after the statutes of uses and wills they could draw upon several bodies of law, and had the opportunity of welding them into a coherent and reasonable system. It was the great disaster of the sixteenth century that they failed to do so. The long reign of Elizabeth was occupied by a succession of judges who had great gifts of dialectic, and a taste for artificial refinement. The sweeping victory of the profession, as exemplified in the Statute of Uses, put them above the reach of criticism. The flood of new wealth released by the dissolution of the monasteries created a new and prosperous landed class, closely attached to the Crown, which could afford to tolerate a mass of real property law which steadily grew more fantastic. The legal profession became even more deeply entrenched in the House of Commons, and the excitement of religious and political controversy seems to have left no desire to raise the issue of law reform.

The materials available were, first of all, the common law itself. Littleton’s immortal work shows clearly that the mediaeval law of land was comparatively simple, reasonable and capable of expression in concise and orderly form. The one disturbing factor was the feudal incidents and the attempts to escape them. The law of estates was, apart from this, clear and simple. Secondly, there was the law of uses. The creation of uses was perfectly simple in 1536; its chief defect was the possibility of creating a use by words only—a difficulty which reappeared later in connection with trusts, and was easily removed by requiring all declarations of trust relating to land to be in writing.2 There was as yet very little law to decide whether any particular scheme of uses was valid or invalid. Thirdly, there was the institution of the devise. The Statute of Wills required that this should take effect as a legal estate, and at the moment it seems that there was little law to restrain testators in the disposition of their lands as they pleased.3

The common lawyers, therefore, had in their hands a vastly augmented mass of law, much of it comparatively new, and much of it in an amorphous condition. No doubt it was too vague in some places; no doubt, too, the fancy of settlors and testators needed restraint at times; but did the situation demand all the subtleties and complications which the sixteenth and early seventeenth centuries imposed?

LEGAL CONTINGENT REMAINDERS

As we have seen, the common law at the close of the middle ages recognised only one type of contingent remainder as valid.1 The doctrine was often stated in the form that there must be no interruption of seisin, but the real reason at first was the difficulty which ensued in the matter of feudal services, particularly if the contingent remainder is in fee, thereby leaving the lord without a tenant, and an interest without an owner.

To the middle ages, a lord deprived of a tenant seemed the greater difficulty. In the sixteenth century, however, the interest without an owner appeared more remarkable. Fortunately, the middle ages had refused to be troubled by this point,2 and so sixteenth-century lawyers were able to take comfort from the fact that all through history the law had tolerated the gap in ownership between the death of one parson and the appointment of his successor. Relying on this curious circumstance, they ventured to admit the possibility of such a gap between the moment when the grantor parts with his fee, and the moment when the contingent fee is ready to take effect.

Colthirst v. Bejushin (1550)3 is a sign of the changing view. Littleton’s discussion of Rickhill’s settlement4 was cited to the court in support of the traditional view that the death of a living person was the only contingency recognised by the law, but Montague, C.J., brushed it aside and stated that it was now settled law that a remainder may commence upon a condition, provided that the condition was not illegal or “repugnant”; the remainders limited by Rickhill he regarded as bad, not because they were conditions, but because they were “repugnant” conditions.5 The result of this case was, therefore, the recognition of an increasing variety of contingent remainders.

Even if a contingent remainder was valid, however, it might be destroyed in a number of ways. There was a rule, to which the common law courts clung tightly, that a contingent remainder must be supported by a precedent estate of freehold or by a right of entry.1 A contingent remainder to a posthumous son will therefore fail,2 for there is an interval between the death of the father and the birth of the son during which there is no freehold to support the remainder. This common difficulty was often avoided by limiting a freehold to the mother, but was still more satisfactorily removed by statute.3 Similarly, destruction might result from a tortious alienation by the tenant for life, or if he were disseised.4 Furthermore, if the estate of the tenant for life became merged with a subsequent vested estate, the result will be the destruction of any intervening contingent remainder. Such merger might take place owing to conveyance between the parties, or by descent, or by the operation of the rule in Shelley’s Case. During the Commonwealth a device was invented by Sir Orlando Bridgman and Sir Geoffrey Palmer (if tradition is correct) which consisted in limiting a remainder to trustees for the life of the life tenant. If the life tenant were to make a tortious feoffment, there would still be this vested remainder ready to support subsequent contingent remainders. This solution was generally accepted, in spite of theoretical objections.5 Meanwhile, the doctrine of merger created so many difficulties that some of it had to be abandoned. So a distinction was drawn between merger effected by means of conveyances between the parties, and merger resulting from the disposition of estates in the settlement. The latter type was so common in practice that the public had to be relieved of the results which flowed from a strict application of legal doctrine, and so it was held that the merged estates might “open and let in” the intervening contingent remainder.6

From the middle of the sixteenth century, therefore, the tendency was to enlarge the class of contingent remainders which the law would recognise, although still emphasising their destructibility. It has been suggested that there was a conscious policy behind this—the prevention of “perpetuities”. By the close of the middle ages the common law had, in fact, come to the conclusion that an entail could be barred;7 soon it proceeded to the further proposition that all entails ought to be barrable, and that this characteristic was inseparable from entails. Whether this paradox was maintained out of a deliberate policy of furthering freedom of alienation (as is often suggested), or merely out of reluctance to abandon the supposed logical results flowing from a particular combination of technicalities, it is difficult to determine. In any case, the courts seem conscious of the fact that if contingent remainders were allowed to become indestructible, the result would be to impede the alienation of land. In fact, entails could be devised which would be unbarrable for a considerable period.

The rules on the validity and destructibility of contingent remainders were drastic, and modifications had to be made, but the swing-back of the pendulum was assisted by the fact that the problem of perpetuities was now to be attacked from a more reasonable standpoint. With the establishment of a rule against perpetuities1 the danger was removed, and contingent remainders began to be viewed with less suspicion. The use of trustees to preserve them was sanctioned by the courts by the beginning of the eighteenth century,2 and no legislation became necessary until the nineteenth century. The abolition of large masses of technicalities then gave parliament the opportunity of restating the law in simpler and less artificial language.3

USES EXECUTED AND EXECUTORY

Besides the traditional common law, however, the courts now controlled a second system of property law, namely, that which had been transferred to them by the Statute of Uses. Before the statute, considerable latitude was permitted in the limitation of uses; certainly Chancery did not insist upon the observance of the common law rules on the derivation of estates. After the statute, there immediately arose the question as to how far the common law courts would continue this policy now that the uses were executed (or in the future might be executed) by the statute. There was, moreover, a further question. Besides the various cestuis que usent there were the feoffees to uses, and their position since the statute was at first uncertain, and later was expressed in very metaphysical terms. At first sight, this second question would seem settled by the statute: the feoffees have nothing, for the policy of the act was clearly to eliminate them from the situation. This was certainly the case in the simplest possible situation, where A. holds to the use of B. and his heirs. Under the statute A.’s seisin passes wholly to B. More complicated limitations, however, raised a difficulty which the sixteenth-century lawyers felt to be acute. If the feoffee had only a life estate, it was held that any uses limited would cease at his death;4 soon afterwards, in a case of a use for life, followed by a contingent use, a dilemma was discovered. The seisin of the feoffees passed by the statute to the cestui que use for life; was there anything left which could support the contingent use? The court felt that whatever the statute said, if there is a use, then there must be someone who is seised to that use. It therefore followed that the feoffees, although their seisin was already exhausted, still had something which would support the subsequent use. This something Dyer christened with the picturesque name of scintilla juris.1

Before the statute, no doubt, a use did require a feoffee for its creation and for its continuance, but the statute clearly aimed at eliminating the feoffee altogether. There were some lawyers who had a trust in legislation sufficiently strong to accept this drastic change as a mystery to be received in faith; others felt the need of rationalising the seeming miracle, and so attributed this scintilla juris to the feoffee.2 For three hundred years the controversy lasted; Coke against Bacon, Booth against Fearne, Sanders against Sugden, the House of Commons (it seems) against the House of Lords. Not until 1860 was the scintilla at last extinguished after a stubborn legislative struggle.3

It was, however, the prevailing theory, and so for practical purposes the position of the feoffees was material to the question whether any particular contingent use was or was not good. A most important result was the rule that “if the estate of the feoffees, which is the root of the uses, be destroyed by the alienation of the land before the uses have their being, no use can afterwards rise”;4 but, conversely, there were circumstances in which the feoffees could enter in order to preserve contingent uses from destruction by those who had vested estates.5

A further question was whether the derivation of estates by way of use should or should not be bound by common law rules. Before the statute, uses were the most flexible means of effecting settlements, and hardly any restrictions were imposed in Chancery. Thus, even a shifting fee was possible by means of a use. The statute gives no hint of any dissatisfaction with this state of affairs, and so we may conclude that the framers of it were ready to tolerate this liberty in limiting uses, however shocking the results might be to common lawyers. The courts were not so sure, however, and sometimes went so far as to suggest that no limitations by way of use were valid unless they would have been valid in a deed at common law. This would have prevented springing and shifting uses and most types of “contingency”, and is hardly distinguishable from the proposition that the statute abolished uses.6 This extreme doctrine was slowly abandoned, but only in part. A most important relic of it is the rule which became firmly settled that if an executory use (or devise) could be construed as a contingent remainder, then it must be so construed.1 Fear of “perpetuities” probably made for the acceptance of this doctrine, which, of course, resulted in making many types of contingent use as destructible as contingent remainders.

EXECUTORY DEVISES

The Statute of Wills allowed land to be devised, and the devise operated under the statute as a new means of conveying land. This therefore constitutes the third body of property law at the disposal of the common law courts. At the same time, some testators, remembering pre-statute days, preferred the old method of the use, and so we find devises of land to persons who were to hold to various uses; the devisees therefore took under the Statute of Wills, and the beneficiaries took under the Statute of Uses.2 At first there was a feeling among some judges that devises, as well as uses, ought to be subjected to the common law of estates; this movement proceeded no further with devises than it did with uses, and so was checked as soon as it was established that executory devises, like executory uses, which were capable of being construed as contingent remainders, must be so construed.3 This left a remarkable class of executory devises which did not fall under the rule, but they, too, were somewhat precarious until the last years of Elizabeth, when opinion began to change as a result of recent developments both in common law and Chancery.

These novelties were concerned with terms of years. As we have seen, the term of years was always viewed with some suspicion, particularly when it was employed merely as a conveyancing device. It was old doctrine that uses could not be declared on a term—there had to be feoffees seised of a fee. If uses were declared upon a term, they were certainly not executed by the statute, and for a long time they received little sympathy from the Chancellor, on the ground that they constituted a device to evade feudal incidents. It was equally certain in the sixteenth century that a remainder could not be created in a term by deed. Whether it could be so created by devise, however, was a question on which opinion fluctuated. In 1536 it was held that if a term was devised to A. in tail, remainder to B., the remainder was bad.4 In 1542 the view was that such a remainder after a life interest only, was good5 but destructible by the first taker; and to the end of the century cases sometimes assert and at other times repudiate these principles.1 The question was not settled until Manning’s Case2 and Lampet’s Case3 decided that an executory devise in a term after a life interest was not only good, but indestructible, “and although these decisions have been grumbled at, they have never been overruled”.4 The common law attitude was the old dogma that a term of years, however long, was of less consideration than an estate for life, but Lord Nottingham many years later claimed that Chancery had helped the common lawyers to reach “the true reason of the thing” instead of “the vulgar reason of the books” by allowing the remainderman to compel the devisee for life to give security in Chancery not to destroy the remainder, and that the change of view of the law courts was largely due to their desire not to send litigants to Chancery.5

By the end of the sixteenth century, therefore, executory devises of terms in remainder after a life interest were in substance indestructible as Chancery would take measures to preserve them: shortly afterwards, the common law itself adopted this changed view in Manning’s Case. Why then should destructibility continue to attach to executory devises of freeholds? The logic of the situation was certainly felt, and the common law courts began to retreat cautiously from their extreme position. Already in 1600 (even before Manning’s Case) they held in a case of an executory devise of a freehold in the form “to A. in fee, but if A. fails to pay certain annuities, then to B.,” that the executory devise to B. was indestructible if it was to an ascertained person.6 This decision helped a great deal in the frequent cases where the enjoyment of land was made conditional on paying annuities to junior members of the family. Twenty years later a slightly different type of conditional limitation was sanctioned. In Pells v. Brown7 a fee was devised to A. and his heirs, but if A. died without issue in the lifetime of B., then to B. It was held that B. is not barred by a recovery suffered by A. As an eminent writer has said, it is difficult to over-estimate the influence of this decision on the subsequent history of conveyancing.8

THE RULE AGAINST PERPETUITIES

By this time, therefore, executory interests in freeholds or in terms were indestructible unless they could be construed as contingent remainders, or were limited after an entailed interest.1 This result represented a considerable change from the doctrine prevalent in the early days of Elizabeth, and it has been very plausibly suggested that competition from Chancery had much to do with the change: Pells v. Brown certainly came at a moment—1620—when the common law had most to fear from the rival system. But Chancery and the common law courts were in consequence both faced by the problem of perpetuities, and so combined their forces in devising a solution, for it must be remembered that chancellors frequently consulted the common law judges in difficult cases.

The word perpetuity was for a long time vaguely used: it first becomes precise when it is used to designate attempts to produce an unbarrable entail, of which Rickhill’s settlement is an early example.2 A bill against “perpetuities” which passed its first reading in the Lords on 19 January, 1598, was directed against uses arising in one person when another person attempts to alienate.3 The term was then extended to analogous situations where the employment of contingent remainders, springing and shifting uses, and executory devises resulted in making the fee inalienable for a considerable length of time. An early instance of the word is in Chudleigh’s Case,4 but the problem itself may be regarded in one sense as very much older, and indeed as being a continuation of the history of freedom of alienation which we have treated in earlier pages. Old rules thus came to be justified on newer grounds. Thus the rule in Shelley’s Case was devised in mediaeval times for a feudal purpose,5 but its continuance was assured because it rendered the creation of perpetuities more difficult. The rule in Purefoy v. Rogers,6 whatever its technical justification, likewise owed its survival to similar considerations.

The first attempts to prevent perpetuities took the form of the complicated rules which we have briefly described. It was hoped that rules limiting the creation and derivation of interests, coupled with rules permitting their destruction, would make undesirable settlements impossible. They probably did; but at the cost of upsetting many others which were perfectly harmless and even convenient. The ponderous machinery was, therefore, reversed and soon gathered alarming speed in the opposite direction. An acute dilemma presented itself between the two dangers of permitting perpetuities and upsetting reasonable arrangements, and slowly it was being realised that the sort of rules then being developed would inevitably cut both ways. The first gleam of light appears in an argument by Davenport (later C.B.) when Child v. Baylie1 came into the Exchequer chamber. He argued that since in this case the contingency must be determined in the lifetime of a living person, then there could be no fear of a perpetuity. The argument was unsuccessful, but slowly attention began to fasten on the life in being, helped at first by the settlement of the rule that an executory devise of a term after an entailed interest was bad, although it would be good after a life interest.2

A line of hesitating decisions culminated in the Duke of Norfolk’s Case3 in which Lord Nottingham laid the foundations of the rule against perpetuities, not so much by defining its content, as by settling the lines upon which it was subsequently to develop. In that case, the Earl of Arundel had conveyed a long term in trust for B., his second son in tail male; but if his eldest son, A., should die without male issue in B.’s lifetime, or if the title should descend to B., then in trust for the third son, C. In fact, A. died without issue during B.’s lifetime, and the validity of the executory trust for C. was the principal point of the case.4 Lord Nottingham, the Chancellor, called into consultation Pemberton, C.J., K.B., North, C.J., C.P., and Montagu, C.B. All three heads of the common law courts advised against the settlement, but Nottingham was not bound to accept their view, and decreed in its favour. On Nottingham’s death, his old friend North succeeded him on the woolsack,5 and in view of his dissent, it is not surprising that a bill of review was brought before him whereupon he reversed Nottingham’s decree. A further appeal to the House of Lords resulted in another reversal and the restoration of Nottingham’s decree (1685). In the course of his decision, Nottingham went fully into the history of the subject, and poured scorn on the mass of artificialities with which the common lawyers had encumbered it. The suggestion that the settlement could be better effected by means of a trust on a new term to C. instead of a new trust on the original term drew from him the famous words:6

Such language must have been profoundly shocking to the common lawyers, and the House of Lords no doubt relished the opportunity of restoring Nottingham’s decree. The basis of his decision was that since the trust to C. must arise, if at all, within the lifetime of a person then in being it could in no wise be properly called a perpetuity. It was true that B. had a fee-tail, but it was likewise true that his interest was determinable on one or the other of two events which could only happen in his lifetime. For two centuries the rule has continued to develop on that broad and reasonable basis, although Nottingham himself refused to be enticed into the discussion of hypothetical difficulties; to the question where would he stop in such cases he retorted:1

Inconveniences have arisen, and the growing rule received its due measure of complexities and difficulties, but it is thanks to Lord Nottingham’s courage and perception that the rule has as its basis a reasonable and simple proposition, instead of the artificial complications which the common law courts had been devising in order to meet the problem.

Such is the history, in brief outline, of the three systems of real property law controlled by the common law courts in the sixteenth and seventeenth centuries—the common law itself, uses executed under the Statute of Uses, and devises of freeholds and of terms under the Statute of Wills. Obviously they were faced with a bewildering situation, but it is difficult to show that they did anything to clarify it. All three systems raised the problem of perpetuities, but the common lawyers seemed to lack the courage, if not the penetration, to state a general solution. The rule was first adumbrated in Chancery, and to Chancery we must now turn for the fourth system of real property law in force during our period—the trust.

THE RISE OF THE TRUST

The Statute of Uses deals with the situation where A. is seised to the “use, confidence or trust” of B. It is clear that the statute operates wherever that situation exists, irrespective of the terms in which it is expressed, neither use, confidence nor trust being technical terms. Indeed, even a use implied in law (as on a bargain and sale) is equally within the statute, although none of these words is employed, and indeed no words at all. Nevertheless, a convention soon arose of confining the word “use” to those relationships which fell within the statute, and of describing those outside of it as “trusts”. The word “trust” had a more general meaning, however, and this vaguer sense has had great influence in the establishment of the modern trust; this broader sense seems to apply to any case where one person was under a moral duty to deal with property for another’s benefit. We have already mentioned the fact that feoffees to uses could re-enter in order to preserve certain executory uses. In Brent’s Case1 Dyer and Manwood state this fact, and give as the reason that the feoffees “were the persons put in trust by the feoffor”. The uses involved in that case were, of course, executed by the statute, but there still remained a “trust”—a duty to take certain steps in order to further the intentions of the settlor.

The origin of the modern passive trust seems to lie in the regular enforcement by Chancery of a duty to convey arising in a few situations of common occurrence; as time goes on it becomes evident that the duty will be enforced with such mechanical regularity that there is no need to pursue the remedy, and the person entitled came to be treated as though he had already received a conveyance. It was in fact a repetition of a process which had already taken place much earlier in the history of the use. It is well known that a purchaser of land who had paid the price could compel the vendor to convey by a suit in Chancery. This rule became so well established that it could be expressed in the now familiar form that a vendor who has been paid, but who remains in seisin of the land, is seised to the use of the purchaser. The purchaser’s right to be put into seisin thus became a “use”—something very like a property right—and after the statute, became a true legal title. The same process was repeated in the history of the trust. There were circumstances, often involving fraud or mistake, in which Chancery would compel a conveyance to the party who in conscience was entitled; this right to have a conveyance, we suspect, gradually acquired the character of a trust.

THE USE UPON A USE

Unfortunately there is very little material available in print from which to construct a history of equity, more especially for the critical reign of Elizabeth. Such scraps as have survived are therefore apt to stand out in undue prominence. This is certainly true of the famous “use upon a use”. The common belief that this was originally, as well as ultimately, a device to evade the Statute of Uses and to create a purely passive trust in spite of the statute, seems unlikely. The origin of the situation, we suspect, was a misunderstanding of the effect of the Statute of Uses upon a bargain and sale, which by now had become so common a conveyance that the true mechanism of it was sometimes forgotten by careless attorneys, with the result that even before the statute we find cases, such as arose in 1532, where it was stated2 that land cannot be given to the use of A. where the rent is reserved to B. and that one cannot bargain and sell to A. for valuable consideration moving from A. to the use of B. Both the first and the second of these propositions turn upon the rule (already discussed)3 that uses must be clear, and not conflicting with other uses or with other duties. Thus, uses cannot be declared upon terms or fees tail, for they would be repugnant to the duty owed to the reversioners; and in the second proposition, the use expressed is void, for it is repugnant to the implied use raised by the consideration. Such was the law even before the statute.1 After the statute, some people seem to have thought that the implied use having been executed by the statute, a bargain and sale was henceforth merely a device for transferring legal seisin from vendor to purchaser, and that it was therefore equivalent, for these purposes, to a feoffment. Attempts were therefore made to bargain and sell to A. to the use of B. hoping that the use to B. would be executed by the statute, just as it would have been if there had been a feoffment of A. to the use of B.2

TYRREL’S CASE

That seems to have been the situation in Tyrrel’s Case.3 Jane Tyrre bargained and sold her lands to George her son and his heirs for ever, in consideration of £400 paid by him to have and to hold to him and his heirs for ever, to the use of Jane for life with divers limitations over. An attempt to support the limitation of uses by reference to the Statute of Enrolments seems to indicate that some people were under the impression that bargains and sales were now equivalent (for these purposes) to a feoffment. The whole bench of the Common Pleas (sitting in the Court of Wards) held that the Statute of Enrolments did nothing to change the nature of a bargain and sale, and that the uses limited were void. The reason for their invalidity is clearly stated to be the same as that expressed in the case before the statute—the bargain for money implies one use, and the limitation of a further is “merely contrary”. Several cases contain the same decision.

This was the view not only of the common law courts, but of Chancery as well; A. bargained and sold to B. to the use of A.—Chancery just as firmly declined to help A.4 Again, A. enfeoffed his sons to the use of himself for life, and after to the use of the sons and their heirs for the performance of his last will. Here also the uses to the last will are repugnant to the use in fee to the sons.5 These decisions were no doubt harsh, defeating the manifest intentions of the parties, who had to suffer for the unskilfulness of their advisers. Those old rules about repugnant uses were clearly working mischief when applied to deeds drawn by unlearned attorneys. Could the old rules be abandoned in view of this tendency to mistake them? Clearly we need not ask such a question of the common lawyers. Even Chancery was stubborn, until in the last years of Elizabeth and during the reign of James I, the idea of enforcing trusts of various sorts began to expand. Here there seemed a way out of the difficulty. Not that the Chancery was tempted to restore the passive use—there was no thought of that, but at least it might be possible to compel the parties to carry out the intention of the settlors, which had only failed through imperfect draftsmanship. Particularly, favour was now being shown to charitable trusts and trusts to convey. The former were favoured no doubt on grounds of public policy; the latter could be regarded as active trusts and so not within the Statute of Uses. To give effect to them the trustee had actually to convey and Chancery would compel him to do so. In Sir Moyle Finch’s Case1 it is implied that a bargain and sale of lands by A. to B. on trust for the payment of A.’s debts might be enforceable in equity. A trust for the payment of debts was regarded as a charitable trust, and although technically a bargain and sale was not the correct form of conveyance in such a case, yet Chancery seemed ready to overlook the use upon a use, and to compel the bargainee to carry out the trust.

SAMBACH v. DALSTON

Chancery was therefore prepared to tolerate a charitable trust limited upon a use in spite of the technical repugnancy. A generation later Sambach v. Dalston2 seems to have revived the old difficulty of a bargain and sale by A. to B. to the use of C. Tyrrel’s Case had held that since B. had a use, the further use to C. was void. By 1634 the influence of Chancery’s care for charitable trusts and trusts to convey is now evident. It is felt to be unconscionable for B. to retain land which he well knows was meant for C. and it was doubtless on these grounds that Chancery decreed that B. must convey to C. The decision was not an attempt to settle the nature of C.’s interest, and it said nothing of trusts; its sole concern was to order B. to convey to C. who, he knew perfectly well, was the intended beneficiary.

It must not be imagined that this case created the modern trust. Active trusts have a continuous history from modern times back to the middle ages, for they were not affected by the Statute of Uses. The passive trust, on the other hand, makes no appearance in Sambach v. Dalston, nor for some years afterwards. That case merely decided that a bargain and sale by A. to B. to the use of C. should no longer have the curious effect of giving all to B. and nothing to C.; in other words, that B., having the legal title of land which ought to be C.’s, can be compelled to convey it to C. This is a long way from the trust of modern times in which B. retains legal ownership and C. has equitable ownership. Although this case did not create the modern passive trust, however, it did provide a curious, but convenient, way of creating it when later on passive trusts were recognised. The practice of deliberately limiting a use upon a use in order to create a trust seems to have been established early in the eighteenth century; it is referred to as something of a novelty as late as 1715.1

The line of development from Tyrrel’s Case to Sambach v. Dalston is, therefore, only a minor factor in the history of the trust. More significant elements in that history seem to be the development of Chancery’s policy to compel conveyance by legal owners who were put under an express trust to convey (such as the trust which appears in Sir Moyle Finch’s Case and was voluntarily carried out by the trustees making a conveyance), and secondly, by compelling legal owners to convey to those who in conscience were better entitled. It has often been remarked that the right in equity to receive a conveyance only needs a slight change of emphasis to become equitable ownership, thus growing imperceptibly into a passive trust.

Trusts of personal chattels were undoubtedly recognised in Chancery as they had been for a century and more. Terms of years presented a difficult problem. Chancery finally took steps to preserve executory interests in terms, at least in those normal cases where a testator was making limitations in a term which was already in existence; the creation of terms merely as a conveyancing device was a different matter, and for some time Chancery refused to give any assistance, especially where they concerned lands held in chief of the Crown. With the abolition of knight-service in 1660 this objection was removed, and so Chancery was free to consider terms as capable of supporting trusts, as well as of being limited in remainder.

[1]27 Hen. VIII, c. 16 (1536).

[1]12 Car. II, c. 24.

[2]Statute of Frauds (1677), 29 Car. II, c. 3, s. 7.

[3]Cf. p. 564, above

[1]Above, pp. 562-564.

[2]Littleton, Tenures, s. 646.

[3]Plowden, 21. Two “conditions” were discussed—a remainder to C. if B. die living A.; and to C. for life if he reside at Barton.

[4]Littleton, Tenures, s. 720; above, p. 563.

[5]The discontinuance put the fee in the alienee; this is “repugnant” to the proviso that the next remainderman should take.

[1]Butler v. Bray (1561), Dyer, 189 b, at 190 b; Archer’s Case (1597), 1 Rep. 66 b.

[2]Reeve v. Long (1695), 3 Lev. 408; 1 Salk. 227; 4 Mod. 282. The reversal of this decision by the Lords carried little weight at this time with the profession.

[3]10 Will. III, c. 22 (1699); cf. the comment in Challis, Real Property (ed. Sweet), 140.

[4]This point is put forward as early as 1317 in the very interesting discussion in Y.BB. Edward II (Selden Society), xxii. 15.

[5]See the discussion in Holdsworth, vii. 112.

[6]Archer’s Case (1597), 1 Rep. 66 b; Purefoy v. Rogers (1669), 2 Wms. Saunders, 380 at 387.

[7]Below, p. 620.

[1]Below, p. 596.

[2]Duncomb v. Duncomb (1697), 3 Lev. 437; Dormer v. Parkhurst (1740), 6 Bro. P.C. 351.

[3]See, in general, Challis, 138-141, and Holdsworth, vii. 114-115; Contingent Remainders Act, 1877.

[4]Anon. (1561), Dyer, 186 a (note that the old rule that the feoffee must have a fee simple is already disappearing).

[1]Brent’s Case (1575), Dyer, 339 b at 340. The expression occurs in Bracton, f. 160, 183 b (last line).

[2]In spite of vigorous opposition the scintilla was recognised by a majority in Chudleigh’s Case (1595), 1 Rep. 113 b, after an entertaining controversy.

[3]23 & 24 Vict. (1860), c. 38, s. 7; see the references in Holdsworth, vii. 140.

[4]Brent’s Case (1575), 2 Leo. 14 at 18; Dyer, 339 b.

[5]Chudleigb’s Case (1595), 1 Rep. 113 b at 137. The feoffee’s entry might also serve to evive vested uses: Delamere v. Burnard (1568), Plowden, 346.

[6]Coke’s argument and the judgment of Popham, C.J., in Chudleigh’s Case are examples.

[1]The classical statement of the rule is in Purefoy v. Rogers (1669), 2 Wms. Saund. 380 at 388, by which time the rule was about eighty years old (Holdsworth, vii. 127); cf. below, n. 3.

[2]Examples are collected in Holdsworth, vii. 120-121.

[3]There are hints of the rule in Chudleigh’s Case (1595), and it was applied to an executory devise even earlier in Challoner and Bowyer’s Case (1587), 2 Leo. 70; cf. above, n. 1.

[4]Anon. (1536), Dyer, 7 a.

[5]Anon. (1542), Br. Chattels 23; Bro. N.C. 33. Sometimes the gift was not expressed simply as for life (which might have swallowed up the whole term, to the detriment of the remainderman) but as “to A. for as many years as she shall live”: Weleden v. Elkington (1578), Plowden, 516.

[1]The cases are listed in Gray, Rule against Perpetuities, 120-121.

[2](1609), 8 Rep. 94 b.

[3](1612), 10 Rep. 46 b.

[4]Gray, op. cit., 122.

[5]Duke of Norfolk’s Case (1681), 2 Swanst. 454 at 464; quoted in Holdsworth, vii. 131.

[6]Purslowe v. Parker (1600), 2 Rolle, Abridgement, 253 no. 2, 793 no. 2; cited in Pells v. rown (1620), 2 Rolle Rep. 216 at 218-219.

[7](1620), Cro. Jac. 590. 2 Rolle Rep. 216.

[8]Gray, Rule against Perpetuities, 128.

[1]Child v. Baylie (1623), Cro. Jac. 459, confirmed previous opinions that such limitations were void.

[2]Above, p. 563.

[3]Printed in Holdsworth, vii. 546.

[4](1595), 1 Rep. 120, “commonly called the Case of Perpetuities” (1 Rep. was published in 1602).

[5]Above, p. 564.

[6]Above, pp. 593-594.

[1](1618-1623), Cro. Jac. 459; 2 Roll. R. 129; Palmer, 334; it was a devise of a term to A. and his assigns, but if A. die without issue living at his death, then to B. Both courts held that the devise over to B. was bad. Note, however, that while this was pending it was held in Pells v. Brown that corresponding limitations in a devise of a freehold were good. As Gray, Perpetuities, 119, remarks, the courts were especially suspicious of settlements of terms, and it was in connection with terms that the rule against perpetuities was first developed.

[2]Above, p. 595.

[3](1681), 3 Cas. in Ch. 1; 2 Swanst. 454.

[4]As the law stood after Child v. Baylie it was invalid.

[5]Later becoming Lord Guilford.

[6]3 Cas. in Ch. at 33.

[1]3 Cas. in Ch. 49.

[1](1575), 3 Dyer, 339 b at 340.

[2]Anon., Bro. Feoffement al Uses, 40, 54.

[3]Above, p. 581.

[1]Hence a bargain and sale (of the fee) before the statute was followed in practice by a feoffment. Similarly, a cestui que use in the late fifteenth century would give notice of his intention to the feoffee to uses, who would thereupon make a legal estate accordingly: Cases in Exchequer Chamber (Selden Society), ii. 12 no. 7.

[2]In this and the succeeding cases it is clear that the parties hoped that the second use was executed by the statute, and that they had no thought of evading it, still less of creating a trust. They only turned to Chancery when they discovered their failure to come within the statute.

[3](1557), Dyer, 155 (and in Digby, Real Property, 375); 1 And. 37.

[4]Anon., Cary, 14 (undated).

[5]Girland v. Sharp (1595), Cro. Eliz. 382 (and in Digby, Real Property, 375).

[1](1600) 4 Inst. 86; for an analysis, see Holdsworth, v. 307.

[2](1634). “Because one use cannot be raised out of another, yet ordered and the defendant ordered to pass according to the intent” (Tothill, 188).

[1]Ames, op. cit. 247 n. 2; Daw v. Newborough, Comyns, 242.