Conscience A right in Law So much of the nature and definition of an use It followeth to consider the parts and properties of an use wherein by the consent of all Bookes and it was distinctly delivered by Justice Walmeley in 36. Elizabeth That a trust consisteth upon three parts The First that the Feoffee will suffer the Feoffer to take the profits The Second that the Feoffee upon request of the Feoffer or notice of his Will will execute the Estates to the Feoffer or his Heires or any other by his direction The Third that if the Feoffee be disseised and so the Feoffer disturbed the Feoffee will re-enter or bring an action to re-continue the possession so that those three pernancy of Profits execution of Estates and defence of the Land are the three poynts of trust The properties of an use they are exceeding well set forth by former Justice in the same Case and they be three Uses saith he are created by Confidence Pressed by privity which is nothing else but a continuance Of the Confidence without interruption and ordered and guided by Conscience either by the private Conscience of the Feoffee Or the generall Conscience of the Estate which is Chancery The two former of which because they bee matters more throughly beaten and wee shall have occasion to handle them we will not now debate upon But the third we will speake somewhat of both because it is a key to open many of true reasons and termings of uses and because it tendeth to decide out great and principall doubts at this day Cooke Soliciter entring into his Argument of Chudleyes Case said sharply and fitly I will put never a Case but shall be of an use for a use in Law hath no fellow meaning that the learning of uses is not to bee matched with other Learnings Anderson chiefe Justice in the Argument of the same Case did truely and profoundly controule the Vulgar opinion collected upon the fifth E. 4. that there might be Possessio fratris of a use for he said that it was no more but that the Chancelee would consult with the Rules of Law where the intention of the parties did not specially appeare and therefore the private conceipt which Glanvile Justice cited in the 42. Reginae in the case of Corbet in the Common Plea of one of Lincolnes Inne whom he named not but seemed to allow is not sound which was that a use was but a limitation and did ensue the nature of a possession This very conceipt was set on foot in 27. H. 8. in the Lord Darcies Case in which time they began to heave at uses for there after the Realme had many ages together put in ure the passage of uses by Will they began to argue that an use was not deviseable but that it did ensue the nature of the Land and the same yeare after this Statute was made so that this opinion seemeth ever to bee and for ever to an Act of Parliament touching uses and if it bee so meant now meant I like it well but in the meane time the Opinion it selfe is to be recited and because in the same Case of Corbet 3. reverent Judges 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 judgement that an use of Inheritance could not be limited to cease and againe that the limitation of a new use could not be to a Stranger ruling uses meerely according to the ground of possession it is worth the labour to examine that learning by 3. Hen. 7. You may collect that if the Feoffees had bin disseised by the Common Law and an Ancestor collaterall of Cesty que use had released unto the disseisor and his warranty had attached upon Cesty que use yet the Chancellour upon this matter shewed would have not respect unto it to compell the Feoffees to execute the Estate unto the disseisor for there the case being that Cesty que use Intayle 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 doe a right of possession and the reason is because the Law of Collaterall garranty is a hard Law and not to be considered in a Court of Conscience in 5. Edw. 4. It is said that if Cesty que use be attainted quaere 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 Tent is by Title for that is nothing to the Subpoena because the Feoffees intent was never to advance the Lord but onely his owne bloud and therefore the quaere of the Booke ariseth what the trust and confidence of the Feoffee did tye him to doe as whether he should not sell the Land to the use of the Feoffees Will or in pious uses so favourably they tooke the intent in those dayes as you find in 27. H. 6. that if a man had appointed his use to one for life the remainder in Fee to another and Cesty que use for life had refused because the intent appeared not to advance the Heire at all nor him in reversion presently the Feoffee should have the Estate for life of him that refused some waies to the behoofe of the Feoffer But to proceed in some better order towards the disproofe of this Opinion of limitation there be foure points wherein we will examine the nature of uses The raysing of them The preserving of them The transferring of them The extinguishing of them In all these Foure you shall see apparantly that uses stand upon their owne reasons utterly differing from Cases of possession I would have one Case shewed by men learned by the Law where there is a deed and yet there need a consideration as for paroll 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 confession of it and therefore in 8. Reginae it is solemnly agreed that in the Queenes Case a false consideration if it bee of Record will hurt the Patent but want of consideration doth never hurt it and yet they say that a Case is but a nimble and light thing and now contrariwise it seemeth to bee weightier then any thing else for you cannot weigh it up to raise it neither by deed nor deed inrolled without the weight of consideration but you shall never find a reason of this to the Worlds end but in the Law but it is a reason of Chancery and it is this That no Court
maintaine though I limit no particular Estate at all yet the use is good and shall in the interim returne to the Feoffor Contrary Law if I once limit the whole Fee-simple of the Use out of Land and part thereof to a person incertaine it shall never returne to the Feoffer by way of fraction of the Use but looke how it should have gone unto the Feoffer if I begin with a contingent Use so it shall go to the remainder if I intaile a contingent Use both Estates are alike subject to the contingent Vse when it falleth as when I make a Feoffment in Fee to the use of my wife for life the remainder to my first begotten son I having no Sonne at that time the remainder to my brother and his heires if my wife dye before I have any son the Vse shall not be in me but in my brother And yet if I marry againe and have a Sonne it shall devest from my brother and be in my Sonne which is the skipping they talke so much of So if I limit an Use joyntly to two persons not in Esse and the one commeth to bee in esse hee shall take the intire Use and yet if the other afterward come in esse hee shall take joyntly with the former as if I make a Feoffment to the use of my Wife that shall bee and my first begotten Sonne for their Lives and I marry my Wise taketh the whole Use and if I afterwards have a Sonne hee taketh joyntly with my Wife But yet where words of obeyance worke to an Estate executed in course of Possession it shall doe the like in Use as if I infeoffee A. to the use of B. for life the remainder to C. for life the remainder to the right Heires of B. this is a good remainder executed So if I enfeoffee A. to the use of his right Heires A. is in the Fee-simple not by the Statute but by the Common Law Now are wee to examine a speciall point of the disability of persons as to take by the Statute and that upon the words of the Statute where divers persons are seised to the use of other persons so that by the letter of the Statute no use is conteyned but where the Feoffor is one and Cesty que use is another Therefore it is to bee seene in what Cases the same persons shall be both seised to the use and Cesty a que use and yet in by the Statute and in what Cases they shall be diverse persons and yet in by the Common Law wherein I observe unto you three things First that the letter is full in the point Secondly that it is strongly urged by the Clause of joynt Estates following Thirdly that the whole scope of the Statute was to remit the Common Law and never to intermeddle where the Common Law executed an Estate therefore the Statute ought to bee expounded that where the party seised to the use and the Cesty que use is one person hee never taketh by the Statute except there bee a direct impossibiltie or impertinency for the use to take effect by the Common Law And if I give Land to I. S. to the use of himselfe and his Heires and if I. D. pay a summe of mony then to the use of I. D. and his Heires I. S. is in of an Estate for life or for yeares by way of abridgment of Estate in course of Possession and I. D. in of the Fee-simple by the Statute So if I bargaine and sell my Land after seven yeares the Inheritance of the Use onely passeth and there remaines an Estate for yeares by a kind of substraction of the Inheritance or occupyer of my Estate but meerely at the Common Law But if I enfeoffee I. S. to the use of himselfe intayle and then to the use of I. D. in Fee or Covenant to stand seisd to the use of my selfe in tayle and to the use of my Wife in Fee in both these Cases the Estate tayle is executed by this Statute because an Estate tayle cannot be reoccupied out of a Fee-simple being a new Estate and not like a particular Estate for life or yeares which are but portions of the absolute Fee and therefore if I bargaine and sell my Land to I. S. after my death without Issue it doth not leave an Estate tayle in mee nor vesteth any present Fee in the bargaines but is an use expectant So if I enfeoffee I. S. to the use of I. D. for life and then to the use of himselfe and his Heires he is in of the Fee-simple meerely in course of Possession and as of a Reversion and not of a remainder Contrary Law if I enfeoffee I. S. to the use of I. D. for life then to the use of himselfe for life the remainder to the use of I. N. in Fee now the Law will not admit fraction of Estates but I. S. is in with the â—est by the Statute So if I infeoffee I. S to the use of himselfe and a Stranger they shall be both in by the Statute because they could not take joyntly taking by severall Titles Like Law if I infeoffee a Bishop and his Heires to the use of himselfe and his successors he is in by the Statute in the right of his Sea And as I cannot raise a present use to one out of his owne seisin so if I limit a contingent or future use to one being at the time of limitation not seis'd but after become seised at the time of the execution of contingent use there is the same reason and the same Law and upon the same difference which I have put before As if I covenant with my Sonne that after his Marriage I will stand seised of Land to the use of himselfe and his Heires and before Marriage I enfeoffee him to the use of himselfe and his Heires and then hee marryeth hee is in by the Common Law and not by the Statute like Law of a bargaine and sale But if I had let to him for life onely then hee should have beene in for life onely by the Common Law and of the Fee-simple by Statute Now let mee advise you of this that it is not a matter of subtilty or conceipt to take the Law right when a man commeth in by the Law in course of Possession and where hee commeth in by the Statute in course of Possession but it is materiall for the deciding of many Causes and Questions as for Warranties Actions Conditions Wayners Suspitions and divers other Provisoes For example a mans Farmer committed wast after he in the Reversion covenanteth to stand seis'd to the use of his Wife for life and after to the use of himselfe and his Heires his Wife dyes if hee bee in his Fee untouch'd he shall punish the wast if he be in by the Statute he shall not punish it So if I bee infeoffed with Warranty and I covenant with my Sonne to stand seised to the use of my selfe for
Law it putteth in precisely this word Other meaning the divided Use and not the communed Use and this causeth the Clause of joynt Feoffees to follow in a branch by it selfe for else that Case had beene doubtfull upon this word Other The words that are common to both are words expressing the conveyance whereby the Use ariseth of which words those that bred any question are Agreement Will otherwise whereby some have inferred that Uses might be raised by agreement paroll so there were a consideration of mony or other matter valuable for it is expressed in the words before Bargaines Sale and Contract but of bloud or linned the errour of which Collection appeareth in the word immediately following s. Will whereby they might aswell include that a man seised of Land might raise an Use by Will especially to any of his Sonnes or Kindred where there is a reall consideration and by that reason meane betwixt this Statute and the Statute of 32. of Wills Lands were deviseable especially to any mans Kindred which was clearely otherwise and therefore those words were put in nor in regard of Uses raised by those conveniences or without or likewise by Will might be transferred and there was a person seised to a Use by force of that agreement or Will s. to the Use of the Assigne and for the word Otherwise it should by the generality of the word include a Disseisin to a Use but the whole scope of the Statute crosseth that which was to execute such Uses as were confidences and trust which could not be in Case of Disseisin for if there were a commandment precedent then the Land was vested in Cesty que use upon the entry and if the Disseisin were of the Disseisors owne head then no trust and thus much for the case of Supposition of this Statute here follow the ordinance and purview thereupon The Purview hath two parts the first Operatio Statuti the effect that the Statute worketh and there is Modus operandi a fiction or explanation how the Statute doth worke that effect The effect is that Cesty que use shall be in possession of like Estate as he hath in the Use the fiction quomodo is that the Statute will have the Possession of Cesty que use as a new body compounded of matter and forme and that the Feoffees shall give matter and substance and the Use shall give forme and quality the materiall words in the first part of the purview are foure The first words are Remainder and Reverture the Statute having spoken before of Uses in Fee-simple in Tayle for life or yeares addeth or otherwise in Remainder reverture whereby it is manifest that the first words are to be understood of Uses in Possession for there are two substantiall and essentiall differences of Estates the one limiting the times for all Estates are but times of their continuantes the former maketh little difference of Fee-simple Fee Tayle for life or yeares and the other maketh difference of Possession as remainder all other differences of Estate are but accidents as shall be said hereafter these two the Statute meant to take hold of and at the words Remainder and Reverture it stopps it addes not wordes Right Title or possibility nor it hath not generall words or otherwise it is most plaine that the Statute meant to execute no inferiour Uses to Remainder or Reverture that is to say no possibility or contingences but Estates onely such as the Feoffees might have executed by Conscience made note also the very Letter of the Statute doth take notice of a difference betweene an Use in Remainder and an Use in Reverture which though it cannot properly because it doth not depend upon particular Estates as Remainders doe neither did then before the Statute draw any Tenures as Reversions doe yet the Statute intends that there is a difference when the particular Use and the Use limited upon the particular Use are both new Uses in which Case it is a Use in Remainder and where the particular Use is a new Use and the remnant of the use is the old use in which Case it is a use in Reverter The next materiall word is from henceforth which doth exclude all conceipt of relation that Cesty que use shall not come in as from the time of the first Feoffments to use as Bradnells conceipt was in 14. Henry 8. that is the Feoffee had granted a Rent charge and Cesty que use had made a Feoffment in Fee by the Statute of 1. Richard 3. the Feoffee should have held it discharged because the Act of Cesty que use shall put the Feoffee in as if Cesty que use had beene seised in from the time of the first Use limited and therefore the Statute doth take away all such ambiguities and expresseth that Cesty que use shall bee in Possession from henceforth that is from the time of the Parliament for Uses then in being and from the time of the execution for Uses limited after the Parliament The third materiall words are Lawfull seisin state and Possession not a Possession in Law onely but a seisin in Tayle not a Title to enter into the Land but an actuall estate The fourth words are of and in such Estates as they had in the Use that is to say little Estates Fee-simple Fee Tayle life for yeares at Will and Possession and Reversion which are the substantiall differences of Estates as was said before but both their latter Clauses are more fully perfected and expounded by the branch of the fiction of the Statute which followes This branch of Fiction hath three materiall words or Clauses the first materiall Clause is that the Estate Right Title and Possession that was in such person c. shall bee in Cesty que use for that the matter and substance of the Estate of Cesty que use is the Estate of the Feoffee and more hee cannot have so as if the Use were limited to Cesty que use and his Heires and the Estate out of which it was limited was but an Estate for life Cesty que use can have no Inheritance so if when the Statute came the Heire of the Feoffee had not entred after the death of his Ancestor but had onely a Possession in Law Cesty que use in that Case should not bring an Assize before entry because the Heire of the Feoffee could not so that the matter whereupon the Use must work is the Feoffees Estate but note here whereas before when the Statute speakes of the Uses it spake onely of Uses in Possession Remainder and Treverter but not in Title or Right now when the Statute speakes what shall bee taken from the Feoffee it speakes of Title and Right so that the Statute takes more from the Feoffee then it executes presently in Case where there are uses in contingence which are but Titles The second word is Cleerely which seemes properly and directly to meet with the conceipt of Scintilla Iuris as
and interest the King hath in her possession she cannot be seised to an use A Corporation cannot be seised to an use because their capacity is to a use certaine againe because they cannot Execute an Estate without doing wrong to their Corporation or Founder but chiefly because of the letter of this Statute which in any clause when it speaketh of the Feoffee resteth only upon the word person but when it speaketh of Cefty que use it addeth person or body politicke If a Bishop bargaine or sell Lands whereof hee is seised in the right of his Sea this is good during his life otherwise it is where a Bishop is infeoffed to him and his Successors to the use of I. D. and his heires that is not good no not for the Bishops life but the use is meerely voyd Contrary Law of Tenant in Taile for if I give Land in Taile by Deed since the Statute to A. to the use of B. and his heires B. hath a fee-simple determinable upon the death of A without issue And like Law though doubtfull before the Statute was for the chiefe reason which bred the doubt before the Statute was because Tenant in Tayle could not Execute an Estate without wrong but that since the Statute is quite taken away because the Statute saveth no right of intayle as the Statute of 1. R. 3. did and that reason likewise might have bin answered before the Statute in regard of the common recovery A feme Covert and an Infant though under yeares of discretion may be seised to an use for aswell as Land might descend unto them from a Feoffee to use so may they originally be infeoffed to an use yet if it be before the Statute and they had upon a Subpoena brought executed their Estate during the coverture or infancy they might have defeated the same and when they should have beene seized againe to the Use and not to their owne use but since the Statute no right is saved unto them If a feme Covert or an Infant be enfeoffed to an Use precedent since the Statute the Infant or Baron come too late to discharge or roote up the Feoffment but if an Infant be infeoffed to the Use of himselfe and his Heires and I. D. pay such a summe of money to the Use of I. G. and his Heires the Infant may disagree and overthrow the contingent Use Contrary Law if an Infant be infeoffed to the Use of himselfe for life the remainder to the Use of I. S. and his Heires he may disagree to the feoffment as to his owne Estate but not to devest the remainder but it shall remaine to the benefit of him in remainder And yet if an Attainded person be infeoffed to an Use the Kings Title after Office found shall prevent the Use and Relate above it but untill office the Cesty que vse is seised of the Land Like Law of an Alien for if Land be given to an Alien to an Use the Use is not voyd ab initio Yet neither Alien or Attainded person can maintaine an Action to defend the Land The Kings Villeine if he be infeoffed to an Use the Kings Title shall relate above the Use otherwise in Case of a common person But if the Lord be infeoffed to the Use of his Villeine the Use neither riseth but the Lord is in by the CoÌ„mon Law not by the Statute discharged of the use But if the husband be infeoffed to the use of his wife for yeares if he die the wife shall have the Terme and it shall not inure by way of discharge although the Husband may dispose of the wives Terme So if the Lord of whom the Land is held be infeoffed to the Use of a person Attainded the Lord shall not hold by way of discharge of the Use because of the Kings Title An. diem vastum A person uncertaine is not within the Statute nor any Estate in nutibus or suspence executed as if I give Land to I. S. the remainder to the right Heires of I. D. to the use of I. N. and his Heire I. N. is not seised of the Fee-simple of an Estate per vit. of I. S. till I. D. be dead and then in Fee-simple Liker Law if before the Statute I give Land to I. S. per auter vie to an Use and I. S. dyeth leaving Cesty que vse whereby the free-hold is in Suspence the Statute commeth and no occupant entreth the Use is not executed out of the free-hold in suspence For the occupant the Disseissor the Lord by Escheate The Feoffee upon consideration not having notice and all other persons which shal be seised to Use not in regard of their persons but of their Title I referre them to my division touching disturbance and interruption ofUses It followeth now to see what person may be a Cesty que vse the King may be Cesty que vse but it behoveth both the declaration of the Use and the conveyance it selfe to be matter of Record because the Kings Title is compounded of both I say not appearing of Record but by conveyance of Record And therefore if I covenant with I. S. to leavy a Fine to him to the Kings use which I do accordingly And this deed of Covenant be not inrol'd and the Deed be found by office the use vesteth not Econverso inrol'd If I covenant with I. S. to infeoffe him to the Kings use and the Deed be inrol'd â—nd the feoffment also be found by office the use vesteth But if I leavy a fine or suffer a Recovery to the Kings use and declare the use by Deede of Covenant Enrol'd though the King be not party yet it is good enough A Corporation may take an Use yet it is not material whether the feoffment or the Declaration be by deed but I may infeoffee I. S. to the use of a Corporation and this use may be averred A Use to a person incertaine is not voyd in the first limitation but executeth not till the person be in esse so that this is positive than an Use shall never be in Obeyance as a Remainder may be but ever in a person certaine upon the words of the Statute and the Estate of the Feeoffees shall be in him or them which have the Use The reason is because no confidence can be reposed in a person unknowne and uncertaine and therefore if I make a feoffment to the use of I. S. for life and then to the use of the right Heires of I. D. the remainder is not in Obeyance but the Reversion is in the Feoffer quousque So that upon the matter all persons uncertaine in Use are like conditions or limitations precedent Like Law if I Enfeoffee one to the use of I. S. for yeares the remainder to the right Herres of I. D. This is not executed obeyance and therefore not void Like Law if I make a Feoffment to the use of my wife that shall be or to such persons as I shall
life and after to him and his Heires if I bee in by the Statute it is cleare my Warranty is gone but if I be in by the Common Law it is doubtfull So if I have an eigne Right and be infeoffed to the use of I. S. for life then to the use of my selfe for life then to the use of I. D. in Fee I. S. dyeth if I be in by the Common Law I cannot wayve my Estate having agreed to the Feoffment but if I am in by the Statute yet I am not remitted because I come in by my owne Act but I may wayve my Use and bring an Action presently for my Right is saved unto me by one of the savings in the Statute Now on the other side it is to bee seene where there is a seisin to the use of another person and yet it is out of the Statute which is in speciall Cases upon the ground wheresoever Cesty que use had remedy for the Possession by course of Common Law there the Statute never worketh and therefore if a disseisin were committed to an Use it is in him by the Common Law upon agreement so if one enter as occupant to the Use of another it is in him till disagreement So if a feme infeoffe a man Causa matrimonij pralocuti she hath remedy for the Land againe by course of the Law and therefore in those speciall Cases the Statute worketh not and yet the words of the Statute are generall where any person stands seised by force of any Fine Recovery Peostment bargaine and sale agreement or otherwise but yet the feme is to bee restrained for the reason aforesaid It remaineth to shew what persons may limit and declare an Use wherein we must distinguish for there are two kinds of Declarations of Uses the one of a present Use upon the first conveyance the other upon a power of revocation or new declaration the latter of which I referre to the division of revocation now for the former The King upon his Letters Pattents may declare an Use though the Pattent it selfe implyeth an Use if none be declared If the King gives Lands by his Letters to I. S. and his Heires to the use of I. S. for life the King hath the Inheritance of the use by impliation of the Pattent and no Office needeth for impliation out of matter of Record amounteth ever to matter of Record If the Queene give Land to I. S. and his Heires to the use of all the Church-wardens of the Church of Dale the Pattentee is seised to his owne use upon that confidence or intent but if a common person had given Land in that manner the use had bin voyd by the Stat. of 23. H. 8. and the use had returned to the feoffor his heires A Corporation may take an Use without deed as hath bin said before but can limit no Use without Deed An Infant may limit an Use upon a Feoffment Fine or Recovery and he cannot Countermand or avoyd the Use except hee avoyd the conveyance contrary if an Infant covenant in consideration of bloud or Marriage to stand seised to an Use the Use is meerely voyd If an infant bargaine and sell his Land for mony for Commons or Teaching it is good with averment if for mony otherwise if it be proved it is avoydable if for mony recited and not paid it is voyd and yet in the case of a man of full age the recitall sufficeth If Barron and feme be seised in the right of the feme or by joynt Purchase during the Coverture and they joyne in a Fine the Barron cannot declare the Use for longer time then the Coverture and the feme cannot declare alone but the Use goeth according to the limitation of Law unto the feme and her Heires but they may both joyne in Declaration of the Use in Fee and if they sever then it is good for so much of the Inheritance as they concurr'd in for the Law avoucheth all one as if they joyn'd as if the Baron declare an Vse to I. S. and his Heires and the Feme another to I. D. for life and then to J. S. and his Heires the Vse is good to I. S. in Fee And if upon examination the Feme will declare the Vse to the Judge and her Husband agree not to it it is voyd and the Barons Vse is onely good the rest of the Vse goeth according to the limitation of Law FINIS 1. 2. 3. 1. 2. 3. 4. 5. 6. 1. 2. 3. 1. 2. 1. 2. 3. 4. 1 2 3 1. 2. 3. 1. 2. 3. 1. 2. 3. 4. 1. 2. 3. 1. 2. 3. 1. 2.