give that right to the grantor's lord. It is said by Lord Coke that "if land holden of I. S. be given to an abbot and his successors, in this case if the abbot and all the convent die, so that the body politique is dissolved, the donor shall have againe this land, and not the lord by escheat. And so if land be given in fee-simple to a deane and chapter, or to a mayor and commonalty, and to their successors, and after such body politique or incorporate is dissolved, the donor shall have again the land, and not the lord by escheate." This statement has been often repeated as law, and has proved a sore stumbling-block to courts and writers in this country. Being unwilling to follow it, they have been constrained to call it "obsolete" or "unsuited to our institutions."

§ 50. But the notions which Lord Coke imposed upon his brethren did not always long survive his retirement. In Johnson v. Norway (1622) arose the precise question whether, on the dissolution of a corporation, its land went to the donor or escheated to the lord. Hobart, C. J., said: "The great doubt of the case will be upon the barre of the defendant, whether by the death of the abbot and the monks. the land escheat to the lords of whom that was holden, or whether that shall go to the donors, and to the founders, and he thought that the land shall escheat, to which Winch seemed to agree." The report adds that the judges said they would advise of the case, and gave order to argue it again; but Lord Hale's MSS. say that it was held that the land escheated. This is the only case in which the question has been decided.

51. But although Lord Coke's doctrine rests solely on a dictum of a judge in the fifteenth century, and is contrary to the only decided case, it has often been referred to as law. No decision, however, has ever followed it, and it is probably one of those decantata which when carefully examined will be found not only "odious and obsolete," but in fact to have never been law at all.

B. STATUTORY OR MODERN ESTATES.

I. Legal Estates.

CHAPTER I.

EXECUTORY USES.

DIGBY, HIST. REAL PROP., Ch. VI. (3). Interests in lands, too, might be created by way of use to commence and terminate at times and in ways which the doctrines of the common law would not permit. It has already been seen that where one person desired to convey lands to another at common law, he must do so either by feoffment with livery of seisin, which was the regular mode of transfer, or by the fictitious processes of fine or recovery, or by conveying a particular estate by lease for years and entry, or by lease for life with livery of seisin followed by a release of the reversion to the lessee, or by a grant of the reversion to a third person, in which latter case the lessee for years must attorn to the grantee of the reversion in order to give complete effect to the grant. The foundation of all these modes of conveying interests in lands was open and notorious transfer of possession; the point at which the freehold interest passed out of the grantor and vested in the grantee was marked by an actual change of possession (unless indeed the grantee was already in actual possession), or, in the case of a fine or recovery, by an acknowledgment in open court. Thus it was that freehold interests to take effect in possession or enjoyment at a future time could only be created by way of remainder. . . . No such rule, however, restricted the freedom of the Chancellor in enforc

ing uses. There was no reason why the intention of the donor should not be carried into effect at a future period. Thus a feoffment to A. and his heirs, and after next Christmas to the use of B. and his heirs, would be carried out according to the expressed intention of the donor. So a use might be raised on the happening of any future event, or the expiration of any specified time. Thus, while at common law, as has been pointed out, a fee could not be limited after a fee, this might in effect be done with the use. A conveyance to A. and his heirs so long as he continued unmarried, and upon his marriage to the use of B. and his heirs, would cause the use upon the happening of the event to arise and spring up and vest in B.; in other words, A., upon his marriage, while remaining legal owner, would be constrained by the Chancellor to hold to the use of B. Thus a power was acquired of creating future interests in lands and of causing interests in lands to be shifted and to pass from one person to another, which was unknown to the common law, and which gave rise to the complicated system of conveyancing which prevails at the present day.

ID., Ch. VII., § 2. It has been shown

that before

the Statute the Chancellor was in the habit of enforcing uses created so as to arise at a future time. Such limitations now became effectual also at law, and conveyances were thus enabled to introduce limitations of much greater complication, in dealing with the legal estate, than was possible at common law.

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The above instances may suffice to suggest a distinction which is usually made between what are called (1) shifting uses, (2) springing uses, (3) future or contingent uses, or, more properly, uses limited to take effect as remainders.

The distinction between the first two of the above classes has in the history of the law been of less importance than the distinction between those two classes and the third.

A shifting use is where a use has been properly created, and then upon the happening of some specified event the interest first created passes away from the person enjoying it, and vests, partially or wholly, in some other person. For instance, if lands are given to A. and his heirs to the use of B. and his heirs, but if B. die in the lifetime of A. then to the use of C. and his heirs. Upon the death of B. in A.'s lifetime the use is said to shift to C. Again, a provision is often made by way of the creation of a shifting use for an estate shifting away from the person to whom it is first given to some other member of the family on the acquisition of some other estate. Thus by the aid of shifting uses the old rules as to the creation of future estates by way of remainder may be evaded, a future freehold interest can since the Statute be created by way of shifting use to take effect without waiting for the determination of a particular estate, and an estate in fee simple can by the same method be made to pass from one person to another. Nor can any alienation or disposition of the lands by the first cestui que use affect the interest of the person who, upon the happening of the specified contingency, is entitled to the use of the lands.

Springing uses differ from shifting uses merely in the fact of their arising by virtue of the mode of their creation as new uses, and not operating by way of shifting of a use already created from one person to another.1

1Examples of springing uses occur-upon a bargain and sale to another after seven years, or after the death of the bargainor, or upon any other specified future event. Also upon a covenant to stand seised to the use of another, after the covenantor's-death, or to the use of the heirs or heirs of the body of another after his death. So upon a conveyance operating to transfer the legal estate, with a declaration of the use to A. and his heirs after four years, or after the death of the grantor, or to the use of the heirs of A., after the death of A., such uses are good springing But though the uses are deferred, the conveyance of the seisin to serve the uses must be immediate, because a freehold cannot be conveyed in futuro by any mode of conveyance operating only at common law.-Leake, Land Law, 350.

uses.

Future or contingent uses, or, as they might be called, uses limited as remainders, present somewhat different features, though the importance of the distinction is much diminished by the recent Act 40 and 41 Vict., c. 33. By a series of decisions a rule was established that if a limitation could be regarded as a remainder it should not be regarded as a springing or shifting use. Nor was this rule affected by the consideration that the use might be void if the stringent requirements which the common law demanded in the case of contingent remainders were not complied with. Thus, if it unfortunately happened that the conveyancer, in drawing the deed, expressed the conditions on which the future use was to arise in such a way that the future estate could be construed as a remainder, and if, at the same time, such remainder was contrary to the old common law rules affecting remainders, which had long ceased to be founded on any substantial reason, the future interest was invalid in consequence of this defect in point of law. For instance, if a conveyance was made to B. and his heirs to the use of A. for 10 years, remainder to the use of the heirs of J. S., the remainder was void, being a contingent remainder limited upon an estate for years. The fact that if the limitation did not happen to fall within the definition of a remainder, it might be good as a springing use, was utterly disregarded. Perhaps in no point was the extreme technicality of the rules relating to uses more conspicuous. A partial remedy for this injustice in the case of contingent remainders created by instruments executed after August 2, 1877, has been provided by the Statute 40 and 41 Vict., c. 33, by which it is provided that every contingent remainder . in tenements or hereditaments of any tenure which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a