the seisin must be in an individual, while the Use might be either in an individual or a corporation (y). Therefore, when corporations had occasion to make conveyances of their lands, the method adopted was commonly that of a feoffment, or a lease with actual entry, followed by a release (z). But, of course, a corporation, equally with an individual, can now make an effective conveyance, whether for a freehold or for a leasehold interest, either by Grant under the Real Property Act, 1845 (a), or by simple conveyance under the Conveyancing Act, 1881. The Use which is required for the purpose of a conveyance under the Statute of Uses may be either express or implied. Thus, if A. convey by feoffment or by lease and release to B. in fee, without consideration, and without declaring any Use, there will be a resulting Use, by construction of law, to A. himself; and such Use the statute will execute accordingly (b). A limitation of the legal estate by way of Use is governed by the same principles that apply to the creation of estates by a common law assurance (c). Thus the word heirs, which used to be necessary, at common law, to create an estate of inheritance, was in like manner necessary in a conveyance to Uses; so that, if a man bargains and sells to A., without adding and his heirs (or the now equivalent expression in fee simple), A. has only an estate for life (d). So an estate may be limited by way of Use (as well as by a common law conveyance) in possession, in remainder, or in reversion (e). So the remainder by way of Use may be either vested or contingent (f); and if contingent is subject to the common law rule, that it cannot be limited (y) Bacon, Uses, 42, 57; Fulmerston v. Steward, (1554) Plowd. 102. (2) 2 Sand. Uses, p. 59; Sugd. Gilb. 7, n. (1). (a) 8 & 9 Vict. c. 106. (b) Co. Litt. 271 b; 1 Sand. Uses, pp. 106, 109; Doe v. Rolfe, (1838) 3 N. & P. 648. (c) 1 Sand. Uses, pp. 123, 124; Corbet's Case, (1599) 1 Rep. 83 b. (d) 1 Sand. I'ses, p. 124. (e) Sugd. Gilb. lvii., lviii. (f) Ibid. lviii. 153. on a particular estate less than a freehold (g). Legal estates created by way of Use are also subject, in general, to the same incidents as if created by the methods of the common law (h). Thus, where a particular estate was limited by way of Use, it was formerly liable to forfeiture if the tenant made a feoffment for a larger estate than his interest warranted. And in the same way, if a contingent remainder was limited by way of Use, and the particular estate was destroyed before the contingency happened, the remainder was defeated (i); or if it was not ready to vest in possession on the natural determination of the preceding freehold, it failed. But now, by the Real Property Act, 1845, s. 8, the premature destruction of the preceding freehold does not defeat contingent remainders following it, whether these are created at common law or by way of Use; and by the Contingent Remainders Act, 1877, any contingent remainder created after 2nd August, 1877, by way of Use will not fail merely because the preceding estate determines before it is ready to vest in possession. But a limitation by way of Use, although thus subject. in general to common law principles, was, in other material particulars, allowed a greater latitude (k). For, 1. By the common law, a man could not in any case be a purchaser, that is, take an estate, under his own conveyance; for he could not, in the nature of things, unite the opposite capacities of grantor and grantee, feoffor and feoffee (1). On the other hand, it has always been practicable for a man indirectly, and through the medium of a limitation to Uses, to become a purchaser of his own estate. Thus, A. may by feoffment, or lease and release, convey to a third person, C., to the use of himself, the grantor, for life, with remainder to the use of B., in tail or in fee; or to the use of B. for life, with remainder to the use of himself, the grantor, in tail. And (g) Sugd. Gilb. lviii. 164, 165. (h) 1 Sand. Uses, p. 166. (k) 1 Sand. Uses, p. 130. (1) Ibid. 131, 132; 2 Prest. Est. (i) Sugd. Gilb. p. 298. 20. in both these cases A. will take the legal estate by purchase accordingly (m). Yet, if the remainder were to the use of himself in fee, he would not at one time have taken by purchase, at least not in such a sense as to have made himself a purchasing ancestor, such a Use having been considered as amounting only to the old Use in reversion, so that it would have been converted by the statute into a legal estate in reversion (n). Such was the state of the law at the time of the passing of the Inheritance Act, 1833. That Statute (sect. 3), however, enacted, that when any land shall have been limited by 'any assurance, executed after the 31st December, 1833, "to the person or to the heirs (o) of the person who "shall thereby have conveyed the same land, such person "shall be considered to have acquired the same as a "purchaser by virtue of such assurance, and shall not be "considered to be entitled thereto as of his former estate or part thereof." And just as a man could not, at the common law, convey to himself, so he could not convey to his wife, for she was considered as the same person with him (p). Here again, however, the object could be effected through the medium of a limitation to Uses, by creating a seisin in another person, and declaring a Use to the wife (q). But, now, under the Conveyancing Act, 1881, a man may convey freeholds directly to his wife, either alone or jointly with another or others (), and may also convey freeholds directly to himself and another. But if he wishes to convey to himself alone, he still cau do so only by a conveyance by way of Use. (m) Co. Litt. by Harg. 13 a, n. (2); 1 Sand. Uses, p. 135; Sugd. Gilb. pp. 150, 151. (n) Co. Litt. 23 a; Wood v. Douglas, (1885) 28 Ch. D. 327; Moore v. Simkin, (1885) 31 Ch. D. 95. (0) A limitation by a man to his own heirs, is equivalent to a limi tation to himself and his heirs ; (g) 1 Sand. Uses, p. 132. 2. At common law, a freehold could not be created to commence in futuro, or, in other words, could not be limited to take effect at a future period, except by way of remainder upon some particular estate also passing at the same time out of the grantor. This, however, might be effectually done by a conveyance under the Statute of Uses; for a Use might be limited for any extent of interest to commence in futuro, and the statute transmuted such future interest into a legal estate (s). Thus, a man might covenant to stand seised in fee to the use of another (or bargain and sell to him in fee) seven years hence, and such conveyance would be effectual (t); or by feoffment, or lease and release, an estate might have been conveyed to A. and his heirs to the use of B. and his heirs, at the death of C. (u). A Use thus limited in futuro, independently of any preceding estate, is sometimes called a springing Use (x); and such Use is also often described as an executory Use, because it is not executed by the statute until it comes into esse by the arrival of the period contemplated. Thus, in the two first examples, the whole fee would remain in the covenantor or bargainor, till the seven years had expired (y); in the two latter, a Use resulted to the feoffor or relessor, till the death of C. (z). But on these events happening, the so-called springing Use would be executed, and the cestui que use would become clothed with a legal estate in fee. 3. By a common law conveyance, an estate could not be limited, upon a future event, to one person, in abridgment or defeasance of an estate of freehold, first limited in another (a). Thus, land could not be conveyed to B. in fee, or for life, with a provision that when C. returned from Rome it should thenceforth immediately go over to (8) Sugd. Gilb. 161 (n). (t) 1 Sand. Uses, p. 139. (u) Ibid. 140. (c) Sugd. Gilb. 153. (y) Ibid. 156, (n.), 153 (n.). (2) 1.Sand. Uses, p. 140. (a) Co. Litt. by Butl. 203 (b), n. (1); Cogan v. Cogan, (1596) Cro. Eliz. 360; Blackman v. Fysh, (1892) 3 Ch. 209. C. in fee (b); for this would have been to defeat the first estate by force of a condition, which could only be done by the entry of the grantor, or his heirs. And the effect of such entry would have been to destroy the second limitation as well as the first, and to have restored the grantor and his heirs to their former estate (c). But a Use might always be made to shift, in this manner, from one person to another (d); and therefore, since the statute, the legal estate may be conveyed, through the medium of a Use, in like manner, as by limiting the fee to A. and his heirs to the use of B. and his heirs, with a proviso, that when C. returns from Rome the land shall be to the use of C. and his heirs (e). A Use so limited in derogation of a preceding estate is called a shifting or secondary Use (ƒ); and this also is of the executory kind, the operation of the statute being suspended till the event arrives (g). It is to be observed, however, that there can be no fee simple limited after a fee simple, even under the Statute of Uses, unless where the second fee simple be either in defeasance of the first fee simple, or in the nature of an alternative limitation. It was firmly settled, also, that no estate capable of being considered as a remainder (according to the rules by which remainders are limited) should ever be construed as a shifting or springing Use (h). This maxim has now been deprived of its chief practical importance by the Contingent Remainders Act, 1877 (i), already referred to. That statute enacts that every contingent remainder created by any instrument executed after 2nd August, 1877, or by any will or codicil revived or republished after that date, which would have been valid as a (b) Fearne, by Butl. pp. 14, 15. (c) Co. Litt. 379 a; Litt. ss. 721, 722, 723. (d) Sugd. Gilb. 153, 154, (n.); 1 Sand. Uses, p. 152. (e) Ibid. p. 149. (f) Sugd. Gilb. 152, (n.); 2 Bl. Com. 335. (g) Sugd. Gilb. 154, 155, (n.); 1 Sand. Uses, p. 144. (h) 2 Saund. by Wms. 388; Fearne, by Butl. 393, 9th edit. (i) 40 & 41 Vict. c. 33. |