tail,

and

struction is different, if the use upon the
fcoffment be in the first instance limited to
the feoffor or a stranger for life, or in
with the remainder to the feoffee in fee:
it should also seem, that if the first use be
limited to the feoffee for life, or for years,
with the remainder over in fee, he will take
by the common lawa.

SECT. II.

Of the circum

stances neces

sary to the exe

cution of uses.

SECT. II.

Here I cannot with propriety omit the ad"Now let me advise

Of the circum- vice of lord Bacon d.

stances neces

sary to the exe

cution of uses

A use in esse.

Of express uses, and by what words éreated.

(103.)

you of this, that it is not a matter of sub

" tilty or conceit to take the law right, when

a man cometh in by the law in course of " possession, and where he cometh in by the "statute in course of possession; but it is " material for the deciding of many causes "and questions, as for warranties, actions, "conditions, waivers, suspicions, and divers "other provisoes."

(3.) The statute requires, that there should be a use in esse in possession, reversion or remainder. That use may be either expressed or implied.

First; Of express uses. The statute mentions the words use, trust, and confidence. If lands be conveyed to A. and his heirs in trust for B. and his heirs, or in confidence, that he and they shall take the profits, the legal estate is vested in B. by virtue of the statute: and it is to be observed, that upon the execution of every use or trust by the statute, cestuique use shall have the legal estate, after such quality, manner, form, and condition, as he

Bac. Uses, 65.
• Eure v. Howard, Prec.
Cha. 345. Broughton v.

Langley, 27 Salk. 679. Right ex dem. Phillipps v. Smith, 12 East, 455.

had before in or to the use, confidence, or trust, that was in him.

Besides the words mentioned by the statute, the word intent will raise a uses. Thus a man made a feoffment in fee, sub conditione, ea intentione, that his wife should have the land for her life, with remainder to his younger son in fee; the feoffor died, and also the feoffee, without having made any estate. The heir of the feoffor entered as for a condition broken; but it was resolved, that this was no condition, but an estate executed presently by the statute, according to the intent of the parties. So if it appears, that the parties intended to create a use, though that intention be not expressed by the word intent, or by any other of an express fiduciary import, yet the use will be executed by the statute. Therefore in a case, where A. in 4th Hen. 7. made a feoffment in fee, and accompanied it with a deed of defeazance or declaration, which gave the feoffor and his heirs a power of entry after quiet enjoyment by the feoffees for 100 years; it was held by the judges, after the term had elapsed, that the lands were vested in the heir of the feoffor by the statute 27 Hen. 8.;

See upon these words, 4 Leon. 22. 5 Vin. 44. pl. Bac. Uses, 47.

SECT. II.

Of the circumstances neces

sary to the exe cution of usos.

(104.)

stances neces

SECT. II. for that it appeared to be the intent of the Of the circum- feoffor, that he should have the lands after sary to the exe- the 100 years possession by the feoffees. This intent was the use of the feoffment, which arose out of the possession of the feoffees, and was executed by the statute of uses d.

cution of uses.

It has been said, that if A. (the grantor) be entitled to a remedy at common law by an action of covenant in order to compel B. (105.) (the grantee) to execute estates, there, as no subpœna will lie for A. as cestuique use against B.; so no use can be executed in A. by the

Of implied or resulting uses.

1

statute.

Secondly; Of implied or resulting uses. As the statute did not expressly abolish all future limitations of, and estates created by, uses, there was actually no avoiding the execution of uses, limited or occasioned by conveyances made subsequently to the act. When a feoffment was made without consideration and declaration of the use, what construction was to be adopted? We have seen, that, before the act, the chancery, which judged according to the intention of the parties, would have construed the possession to be in the feoffee, and the use in the feoffor.

d See Callard v. Callard, Cro. Eliz. 344. 2 Roll. Ab. 788. Moore, 687.

• See Wingfield v. Lit

tleton, Dyer, 162. a. See post, 6th subdiv. of this Sec. p. 121.

SECT. II.

stances neces

sary to the exe

cution of uses.

Does the statute destroy this construction? On the contrary, the case appears to come of the circumdirectly within the meaning of it; the words being, that where any person, &c. stands seised to the use of another, by reason of any feoff- (106.) ment, &c. or by any manner of means whatsoever, then, &c. In this case, the feoffee stands seised to the use of another, viz. the feoffor, by an admitted construction before the act. The act certainly did not intend to alter the manner of raising uses; nor did it mean to make any thing pass by a conveyance, which did not pass before; that is to say, it did not mean, that the land and use should now pass in a case, in which the land only passed before the statutes. It may therefore be considered as a general rule, that if a feoffment be made, a fine levied, or recovery suffered without consideration and declaration of the use, the use will result to the feoffor, &c. and be executed in him by the statute &.

Indeed it is said, that if a feoffment be pleaded, the use need not be averred to the feoffee; because if nothing appear to the

Vide 2 Raym. $00. Co. Litt. 22. b. Jenk. Cent. 253.

Roll. Ab. 781. Read v.
Errington, Cro. Eliz. 321.
22 Vin. 214. pl. 1. and
notes.

* Armstrong v. Wolsey, 2 Wils. 19 Doug. 26. Beckwith's case, 2 Co. 56. 58. b. Dyer, 146. b. 271.

Shortridge v. Lamplugh, 2 Salk. 678. 7 Mod. 1 Stra. 107.

(107.)