incident to all other services but thise) because this divine service was of a higher and more exalted nature. This is the tenure, by which almost all the ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and elecmosynary foundations, hold them at this day; the nature of the service being upon the Reformation altered, and made comformable to the purer doctrines of the church of England. It was an old Saxon tenure; and continued [102] under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions :h just as the Druids, among the ancient Britons, had omnium rerum immunitatem. And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it. Wherein it materially differs from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrain, without any complaint to the visitor.k All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenure. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II., and therefore subsists in many instances at this day. The Commissioners do not propose making any alteration in the tenure of frankalmoign.m CHAPTER THE SECOND. OF USES AND TRUSTS. the doctrine of uses and trusts. Importance of WE here propose to give a brief account of the doctrine of uses and trusts, a learning which pervades the whole system of the law of real property, and without some knowledge of which, it is impossible to understand either its theory or its practice. The introduction of uses and trusts, and the passing of the Statute of Uses, almost entirely subverted the feudal system, and the tenures which arose out of it. Nearly all the assurances now employed, operate by virtue of this statute; and we shall see in the ensuing portions of this work, what important alterations the doctrine of uses has made, being in fact the foundation of the modern system of conveyancing. This place appears on the whole the most convenient for introducing an outline of this some-what difficult learning, which however the student will more perfectly understand when he is acquainted with every part of this volume: [327] Uses and) trusts: what they are. Uses and trusts are in their original of a nature very similar, answering more to the fidei-commissum than the usus-fructus of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.m But the fidei commissum, which usually was created by will, was the disposal of an inheritance to one, in [328] confidence that he should convey it or dispose of the profits at the will of another. In our law, a use is a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits." As, if a conveyance was made to A. and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A. the terre-tenant, had the legal property and possession of the land, but B., the cestuy que use, was in conscience and equity to have the profits and disposal of it. the doctrine The idea which was introduced by the ecclesiastics, [329] however fraudulently, afterwards continued to be often Progress of innocently, and sometimes very laudably, applied to a of uses. number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore about the reign of Edward IV., (before whose time, Lord Bacon remarks, there are not six cases to be found relating to the doctrine of uses) the courts of equity began to reduce them to something of a regular system. Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI., with respect to the heir; and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use." But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held that neither the King or Queen, on account of their dignity royal, nor any corporation aggregate, on account • See post, Book IV. ch. 6. S 9 Keilw.42; Year Book, 22 Edw.4, r Keilw. 46; Bacon of Uses, 312. s Bro. Abr. tit. Feoffm. al. Uses, [330] of its limited capacity, could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And, if the releasee to uses died without heir, or committed a forfeiture, or married, neither the lord, who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use ;" because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir. Rules relating to uses before the statute. W On the other hand the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quae ipso usu consumuntur; or whereof the seisin could not be instantly given. 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it to the use of himself : unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions. But, if either a good or a valuable consideration appears, equity will immediately raise a use correspendent to such consideration. 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession; for in this and many other respects aequitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties, or be devised by last will and testament: for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and, as the intention of [331] the parties was the leading principle in this species of pro perty, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee ;d to whom he was accounted by law to be only tenant at sufferance. 5. Uses were not liable to any of the feodal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c. are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use. 6. No wife could be endowed, or husband have his curtesy, of a use :8 for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the original of modern jointures. 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.i For, being merely a creature of equity, the common law, which looked no farther than to the person actually seised of the land, could award no process against it. It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties, which the ingenuity of the times (abounding in subtile disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the ancient law. These principal outlines will be fully sufficient to shew the ground of Lord Bacon's complaint, that this course of proceeding" was turned to deceive many of their just and reasonable rights. A man, that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her [332] thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent d Stat. 1 Ric. 3, c. 1. e Bro. Abr. ibid. 23. f Jenk. 190. 8 4 Rep. 1; 2 And. 75. h See post; Book III. ch. 2. j Use of the Law, 153. |