infant, became entitled to the lands; and if he was attainted of treason or felony, they were forfeited. Confidence son. 1 Rep. 122 a. Plowd. 352. Poph. 71. 8. The right in conscience and equity to the rents Necessity of and profits of land, which constituted a use, was not in the Perissuing out of the land, but was collateral thereto, and only annexed in privity to a particular estate in the land; that is, the use was not so attached to the land, that when once created, it must still have existed, into whose hands soever the lands passed; as in the case of a rent or right of common. But it was created by a confidence in the original feoffee, and continued to be annexed to the same estate, as long as that confidence subsisted, and the estate of the feoffees remained unaltered. So that to the execution of a use, two things were absolutely necessary; namely, confidence in the person, and privity of estate. who were 9. Confidence in the person signified the trust reposed in the feoffees, which arose from the notice given them of the use, and of the persons intended to be benefited by the feoffment. This confidence was sometimes expressed, and sometimes implied. Thus, if a feoffee to uses enfeoffed another person of land, who had notice of the uses to which such land was liable, without any consideration; the new feoffee took it under an implied confidence, 1 Rep. 122 a. and was compellable to execute the use. For it was resolved, that wherever there were feoffees to a use; their heirs and feoffees, and all who came into the land under them in the per, without consideration, provided they had notice of the use, should be seised to such use, and be compelled in Chancery to execute it. But if a feoffee to uses enfeoffed a stranger of the land for valuable consideration, who had no notice of the use; as there was no confidence in the person, Idem. Keilw. 42. And of either expressed or implied, the use was destroyed; nor could the new feoffee be compelled to execute it. 10. If a stranger purchased lands from a feoffee to uses, for a valuable consideration; yet if he had notice of the former uses, he would be compelled to perform them. For although the consideration implied a seisin to his own use, yet the notice of the former uses was a circumstance which, in a court of equity, would render him liable to the performance of them. 11. The idea of confidence in the person was at first extremely limited, as it only extended to the original feoffee. Lord Bacon says, in 8 Edw. IV. the Judges were of opinion, that a subpoena did not lie against the heir of the feoffee, who was in by law; but that the cestui que use was driven to his bill in par. liament. It was however settled, in the reign of Hen. VI., that a subpœna would lie against all those who came in in the per, without paying a valuable consideration; and also against all those who had notice of the former uses, although they did pay a valuable consideration. 12. With respect to privity of estate, it is to be observed, that a use was a thing collateral to the land, and only annexed to a particular estate in the land, not to the mere possession thereof; so that whenever that particular estate in the land to which the use was originally annexed, was destroyed, the use itself was destroyed. Thus, where a person came into the same estate whereof the feoffee to uses was seised, by contract or agreement with him, such person was i Rep. 139 b. liable to the performance of the uses; but if he came in of any other estate than that whereof the feoffee to uses was seised, although he had full notice of the use, yet the privity of estate was thereby destroyed; and consequently the lands were no longer liable to the uses. 13. It followed, from these principles, that where a Idem. Ifeoffee to uses was disseised, the disseisor could not be compelled in Chancery to execute the use, because the privity of estate was destroyed; for the disseisor came in in the post, that is, he did not claim by or from the feoffee to uses, but came in of an estate para mount to that of such feoffee. On the other hand, if 1 Rep. 122 b. a person was disseised of lands which were liable to a rent, right of common, or any other property of that kind, the lands would still continue subject to those charges, notwithstanding the disseisin; because they were annexed to the possession of the land. 14. In the same manner, where a feoffee to uses Id. 122 a. died without heirs, or committed a forfeiture, or married; neither the lord who entered for his escheat or forfeiture, nor the husband who claimed the lands as tenant by the curtesy, nor the wife who was assigned her dower, were liable to perform the trust, because they were not in in the per, that is, in privity of the estate to which the use was annexed; but claimed an estate paramount to that which was liable to the use. Uses. 15. With respect to the persons who were capable Who might of being feoffees to uses, all private persons whom be seised to the common law enabled to take lands by feoffiment, might be seised to a use, and were compellable in Chancery to execute it. Thus, Lord Bacon says, "A feme covert, and an infant, though under years Read. 38. of discretion, may be seised to an use; for as well as land might descend unto them from a feoffee to use, so may they originally be enfeoffed to a use." 16. A corporate body could not be seised to a use, Plowd. 102. because the Court of Chancery could not issue any Year Book, 7 Edw. 4. 17. Bac. Read. 57. What might to Uses. process against them, for the execution of it. And a corporation cannot be intended to be seised to any other's use. 17. Neither the king, nor queen regnant, on ac count of their royal capacity, could be seised to any use but their own: that is, they might hold the lands, but were not compellable to execute the use; as no process could be awarded against them by the Court of Chancery. uses. 18. When King Richard III. was Duke of Glouces ter, he had been frequently made feoffee to uses; therefore, upon his accession to the throne, he would have been entitled to hold the lands discharged of the To obviate so notorious an injustice, an act of parliament was immediately passed, stat. 1 Rich. III. c. 5., by which it was enacted, that where the king had been so enfeoffed jointly with other persons, the lands should vest in the other feoffees, as if he had never been named; and that where the king stood solely enfeoffed, the estate itself should vest in the cestui que use, in like manner as he had the use. 19. A queen consort could not be seised to a use; for although she was enabled to grant and purchase without the king, yet in regard of the government and interest which the king had in her possessions, she could not be seised to a use. 20. With respect to the species of property which be conveyed might be conveyed to uses, it was held, that nothing whereof the use was inseparable from the possession, such as annuities, ways, commons, &c. quæ ipso usu consumuntur, could be granted to a use: but that all corporeal inheritances, as also incorporeal hereditaments, which were in esse, as rents, advowsons in gross, local liberties and franchises, might be conveyed to uses. W. Jones, 127. were go Bac. Read. 13. 21. A use being a species of property totally Rules by unknown to the common law, and owing its existence which Uses to the equitable jurisdiction of the Court of Chancery, verned. the rules by which uses were governed, were derived from the civil law; and differed materially from those by which real property was regulated in the courts of common law. Hence Lord Bacon has observed, that uses stood upon their their own reasons, utterly differing from cases of possession. be raised without a tion. 22. By the common law a feoffment is good with- Could not out any consideration; but Lord Bacon observes, it was established in Chancery that a use could not be Consideraraised without a sufficient consideration; a doctrine Read. 13. evidently taken from the maxim of the civil law, ex nudo pacto non oritur actio. In consequence of this rule, the Court of Chancery would not compel the execution of a use, unless it had been raised for a good or a valuable consideration; for that would be to enforce donum gratuitum. : alienable. 23. Although a use was but a right, and could Were only be considered as a chose in action, which, according to the principles of the common law, is neither transferrable nor assignable, yet a use might be aliened and Lord Bacon observes, that there are two Read. 16. instances where a right to a use was allowed to be transferred; for as no action at law could arise from such a transfer, there was no danger of maintenance, 24. It frequently happened that cestui que use being in possession, aliened the lands, and afterwards the feoffees entered; which gave rise to several vexatious suits in Chancery. To remedy this inconvenience, the statute 1 Rich. III. c. 1. gave the cestui que use in possession a power of alienating the legal estate, without the consent or concurrence of the feoffees. |