Act, and the title is thereby absolutely vested in the donee, grantee, bargainee, etc., independently of the Statute of Uses. Hence, under this statute, a deed in the form of a bargain and sale must be regarded as having the force and effect of a feofment; and under the Statute of Uses, a feofment to A., for the use of or in trust for B., would pass the legal title to B. In a deed purely of bargain and sale, independently of the first section of the Conveyance Act, the rule would be different, and the title would vest in the bargainee. Without the first section, the legal title would be in the trustee, in this case; but as the trust was a passive one, the deed operated as a feofment would at common law, and vested the legal title in the cestuis que trust, by virtue of the Statute of Uses. Thus the statute executes itself. It conveys the possession to the use, and transfers the use to the possession; and by force of the statute the cestuis que trust had the lawful scizin, estate and possession.

The three things necessary to bring this estate within the operation of the statute did concur. There was a person seized to a use; a cestui que use, and a use in esse. The use was then executed, and the statute operated. There was nothing in the deed to prevent the execution of the use. There was nothing to be done by the trustee to make it necessary that he should have the legal estate. There was to be no payment of rents and profits to another, or debts, or taxes. The statute operated instantly, and vested the legal estate in the cestuis que

trust.

All the authorities sustain this view.

Blackstone says that previous to the enactment of Twenty-seventh Henry VIII, abundance of statutes had been provided which tended to consider the cestui que use as the real owner, and that this idea was carried into full effect by the Twenty-seventh Henry VIII, called, in conveyances and pleadings, the Statute for Transferring Uses into Possession; that the statute annihilated the intervening estate of the feofee, and changed the interest of the cestui que use into a legal instead of an equitable ownership; and that the legal estate never vests in the feofee for a moment, but is instantaneously transferred to the cestui que use, as soon as the use is declared. Book 2, 332-333, Black. Com.

CRUISE, in his Digest of the Law of Real Property (Green. Ed. 1 Vol. top p. 313, sec. 34), says when the three circumstances concur, necessary to the execution of a use, "the possession and legal estate of the lands out of which the use was created are immediately taken from the feofee to uses, and transferred, by the mere force of the statute, to the cestui que use. And the seizin and possession thus transferred is not a seizin and possession in law only, but are actual seizin and possession in fact not a mere title to enter upon the land, but an actual estate.

See also Smith Real and Per. Prop. 155; 1 Land Uses, 119; 2 Wash. Real Prop. 120, 1 Ed.; 4 Kent Com. 288 et seq.; Webster v. Cooper, 14 How. (U. S.) 488; Barker v. Keat, 2 Mod. 250.

We are of opinion that the legal estate was in the cestuis que trust, and that the rejected deed was admissible.

The cases referred to in this court are not in conflict with our conclusion.

The judgment is reversed and the cause remanded.

Judgment reversed.1

SECTION VI.

USES NOT EXECUTED BY THE STATUTE.

NOTE. 1544.

[Reported Bro. Ab. Feoff. al Uses, 52.]

A MAN makes a feoffment in fee to his own use for the term of his life, and that after his decease J. N. shall take the profits; this makes a use in J. N. Otherwise if he says that after his death, the feoffees shall take the profits and deliver them to J. N., this does not make a use in J. N., for he never has them unless by the hands of the feoffees.

TYRREL'S CASE.

COURT OF WARDS. 1557.

[Reported Dyer, 155.]

JANE TYRREL, widow, for the sum of four hundred pounds paid by G. Tyrrel her son and heir apparent, by indenture enrolled in chancery in the 4th year of E. 6, bargained, sold, gave, granted, covenanted, and concluded to the said G. Tyrrel all her manors, lands, tenements, &c. to have and to hold the said &c. to the said G. T. and his heirs for ever, to the use of the said Jane during her life, without impeachment of waste; and immediately after her decease to the use of the 1 See Doe Snyder v. Masters, 8 U. C. Q. B. 55.

NOTE. ·Scintilla Juris. "The mode of operation of the Statute with future uses, when limited by way of contingent remainders or as springing or shifting uses, formerly caused much perplexity and difference of opinion. The Statute seemed to exhaust the seisin in serving the prior vested uses, so as to leave none to serve such future uses as and when they should arise. To meet this difficulty it was conceived that there remained in the grantees to uses a possibility of seisin, becoming an actual seisin when the executory uses required it. This was the celebrated doctrine of the scintilla juris, as this possibility of seisin was called. The only practical bearing of this doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner to risk the safety of the dependent uses.

"After much abstruse speculation concerning the nature of the statutory process, the result generally accepted seems to have been that it immediately converted uses of all admissible kinds into legal limitations in a manner quite beyond the power or control of the grantees to uses, and that the latter were merely formal instruments for carrying the legal title to the uses." Leake, Dig. Land Law, 116.

See Sugd. Pow. (7th ed.) c. 1, § 3.

said G. T. and the heirs of his body lawfully begotten, and in default of such issue, to the use of the heirs of the said Jane forever. Quære well whether the limitation of those uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facie? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the enrolment, &c. And this case has been doubted in the Common Pleas before now; ideo quære legem. But all the judges of C. B. and SAUNDERS, Chief Justice, thought that the limitation of uses above is void, &c. for sup pose the Statute of Enrolments [cap. 16] had never been made, but only the Statute of Uses [cap. 10], in 27 H. 8, then the case above could not be, because an use cannot be engendered of an use, &c. See M. 10 & 11 Eliz. † fol.

SYMSON AND TURNER.

CHANCERY. 1700.

[Reported 1 Eq. Cas. Ab. 383, note.]

BUT notwithstanding this statute, there are three ways of creating an use or a trust,1 which still remains as at common law, and is a creature of the court of equity, and subject only to their controul and direction: 1st, Where a man seised in fee raises a term for years, and limits it in trust for A. &c. for this the statute cannot execute, the termor not being seised.2 2dly, Where lands are limited to the use of A. in trust to permit B. to receive the rents and profits; for the statute can only execute the first use. 3dly, Where lands are limited to trustees to receive and pay over the rents and profits to such and such persons; for here the lands must remain in them to answer these purposes; and these points were agreed to.

COOPER v. FRANKLIN.

KING'S BENCH. 1616.

[Reported Cro. Jac. 400.]

EJECTMENT. Upon a special verdict, for lands in Phelpham, the case was, John Walter was seised of those lands in fee, and made a feoff

1 The modern trust, as distinguished from the use executed by the Statute, forms the subject of a separate course and of text-books.

2 Bacon, Uses, 42. The second word material is the word seised: this excludes chattels. The reason is, that the Statute meant to remit the common law, Chattels might ever pass by testament or by parol; therefore the use did not pervert them.

ment of them to Thomas Walter, habendum to him and his heirs of his body, to the use of him and his heirs and assigns for ever. The question was, Whether Thomas Walter had an estate in fee tail only, or in fee determinable upon the estate tail?

First, Whether a use may be limited upon an estate tail at the common law, or at this day after the Statute of 27 Hen. 8, c. 10, of Uses.

Secondly, Whether this limitation of uses to him and his heirs shall not be intended the same uses, being to the feoffee himself, and to the same heirs, as it is in the habendum? Quære, quia non adjudicatur. But the opinion of the court upon the argument inclined, that he was tenant in tail; and the limitation of the use out of the tail is void as well after the statute as before; for the Statute never intended to execute any use, but that which may be lawfully compelled to be executed before the statute; but this cannot be of an estate tail; for the Chancery could not compel him at the common law to execute the estate; and so the Statute doth not execute it at this day. Vide 27 Hen. 8, pl. 2; 24 Hen. 8, pl. 62; "Feoffments al Uses," 41. Et adjournatur.1

EJECTMENT for lands in the county of Merioneth. Plea, the general issue. At the trial before Burrough, J. at the last summer assizes for Salop, it appeared that the lessor of the plaintiff claimed as devisee in tail under the will of Catherine Lloyd, who was co-heiress, with her sister Mary, of Giwn Lloyd, who died in 1774. In 1746, by indenture made between himself, G. Lloyd, of the first part, Sarah Hill of the second part, Sir Rowland Hill and John Wynne of the third part, and Sir Watkin Williams Wynne and Edward Lloyd of the fourth part; in consideration of an intended marriage with the said Sarah Hill, and of a sum of £8,000, being the marriage portion of the said Sarah Hill, paid or secured to be paid to him Giwn Lloyd, he, Giwn Lloyd, did grant, release, and confirm unto the said Sir Watkin Williams Wynne and Edward Lloyd in their actual possession then being, by virtue of an indenture of bargain and sale, &c., and to their heirs and assigns, certain premises therein particularly described, and, amongst others, the premises in question; to have and to hold the said premises with their appurtenances, unto the said Sir Watkin Williams Wynne and Edward Lloyd, their heirs and assigns; to the only proper use and behoof of them the said Sir Watkin Williams Wynne and Edward

1 s. c. 3 Bulst. 184. See 1 Sand. Uses (5th ed.), 87, 88.

ever.

Lloyd, their heirs and assigns for ever, upon trust, nevertheless, and subject to the several uses, intents, and purposes thereinafter mentioned, that is to say, to the use of the said Giwn Lloyd and his heirs until the said intended marriage should take effect, and from and after the solemnization of the said intended marriage, then to the use and behoof of Giwn Lloyd and Sarah his intended wife, and their assigns, for and during the term of their natural lives, and the longer liver of them, as and for her jointure and in lieu and full satisfaction of dower; and from and after the decease of such survivor to the use of Sir Rowland Hill and John Wynne, their executors, administrators, and assigns, for the term of one thousand years, to and for the several intents and purposes thereinafter mentioned; and from and after the expiration or other sooner determination of that estate, to the use and behoof of the first son of the body of the said Giwn Lloyd on the body of the said Sarah Hill, his intended wife, lawfully to be begotten, and the heirs male of the body of such first son lawfully issuing; and for default of such issue, to the use and behoof of the second son in like manner, and then to the daughters; and for default of such issue, to the use and behoof of the said Giwn Lloyd, his heirs and assigns for And it was thereby declared and agreed by and between all and every the said parties to the said indenture, that the term of one thousand years thereinbefore limited to Sir Rowland Hill and John Wynne, was upon trust that they did and should immediately after the decease of Giwn Lloyd, by sale or mortgage of the whole or any part thereof, raise the sum of £3,000 to be paid and applied in manner thereinafter mentioned. And it was thereby declared and agreed by and between the parties to the said indenture that a sum of £4,000 of the said sum of £8,000 should immediately after the solemnization of the said intended marriage be paid into the hands of them the said Sir Rowland Hill and John Wynne, upon trust that the same should be paid, laid out, and applied by them with all convenient speed in the purchase of freehold lands, tenements, or hereditaments in fee simple, in the county of Merioneth aforesaid or elsewhere in the principality of Wales, or in that part of Great Britain called England, with the approbation of them the said Giwn Lloyd and Sarah Hill, his intended wife, or the survivor of them, testified by any deed or writing under the hands and seals of them the said Giwn Lloyd and Sarah Hill, and the survivor of them, duly executed in the presence of two or more credible witnesses; and that the said lands, tenements, and hereditaments, when so purchased, and every part and parcel thereof, with their appurtenances, should be conveyed to them the said Sir Watkin Williams Wynne and Edward Lloyd, and their heirs, and to the survivor of them and his heirs, to and for the use and behoof of the several persons, and for such estate and estates as the premises thereinbefore mentioned, and thereby granted and released by the said Giwn Lloyd, were conveyed, settled, limited, and appointed. And it was thereby also further declared and agreed that in case there should be no issue of the said