created by a deed or will. In powers operating under the
Statute of Uses, the land must be conveyed to uses, and the
power is only over the use, though by force of the statute
the appointee takes the legal estate. The objects may be of
any nature provided the rules of law or equity are not thereby
transgressed. Care must therefore be taken in creating a
power not to exceed by possibility the limits of the rule
against perpetuities. (See Farwell on Powers.)
Q. Explain the distioiction between poivers and estates,
and between pjowers collateral and those ivhich relate to the
land.
A. A power is a bare authority, which confers no owner-
ship but may give an interest to the donee ; whilst an estate
is actual ownership of property, which, if accompanied by
the legal seisin, entitles the owner to possession, and, if an
equitable estate, entitles the owner to compel the legal holder
to account for the profits. -Powers collateral are powers,
operating under the Statute of Uses, given to mere strangers
112 THE student's GUIDE TO THE LAW OF
who take no interest in the land ; whilst powers relating to
the land are, also, powers operating under the Statute, but
are given to persons having an estate in the land, and are
either appendant, that is, may be exercised during the con-
tinuance of that estate, or in gross, that is, can only be
exercised after the determination of the estate.
Q. State, giving examples, the rules governing the opera-
tion of excessive appointments under powers, and shoiu in
what cases the cy-pres doctrine is applied to such appoint-
ments.
A. Where there is a complete execution of the power and
something ex ahundanti added, which is improper, the execu-
tion is good and the excess only void ; but where there is not
a complete execution of the power, where the boundaries
between the excess and the execution are not distinguishable,
it will be bad. The leading case of Alexander v. Alexander
furnishes a good instance of an excessive execution of a
power. The cij-prls doctrine is applied in some cases of
appointments by will, so as to give effect, as nearly as may be,
to the testator's intention ; thus, it has been decided that
w^here a power of appointing land, or money to be laid out
in land, is given in favour of children, and the power is
exercised by will in favour of a child, with remainder to the
children of such child in tail — here the Court will give an
estate tail to the child to whom a life estate only is given by
will. (Indermaur's Conveyancing and Equity Cases, 18, 19.)
Q. Give a summary of the legislation of the present
century ivith reference to illusory and exclusive appjoint-
ments.
A. Originally an illusory appointment was good at law
though bad in equity. By 1 Wm. 4, c. 4(3, an illusory ap-
pointment is valid in equity as well as at law. An exclusive
appointment was always void as not being a proper exercise
of a special power of appointment. Xow, by 37 & 38
Vict., c. 37, an exclusive appointment is good.
REAL AND PERSONAL PROPERTY. 113
Q. Distinguish <i conviiiuii laiv potvev from a power
operating under the Statute of Uses / Explain the opera-
tion of the poiver of sale formerly inserted in strict settle-
ments.
A. A common law power is one recognised and given
effect to by the courts of law, e.g., a power of attorney to
receive a debt ; or a direction in a will that the executors, to
whom no estate is given in the land, should sell testator's
real estate. A power which operates under the Statute of
Uses is an authority to create a use in freehold land, which
is at once changed into the legal estate by tlie Statute, e.g.,
if land be limited to A and his heirs to such uses as B
appoints, and subject thereto to the use of C in fee. The
trustees frequently took no estate in the land, and their
power of sale was an equitable power, and it was necessary
to insert in the settleiiient a further power to convey to the
purchaser, and this latter power operated as the declaration
of a use or by way of appointment. (Elphinstone, 9, 22.)
Q. Expjlain the difference in operation of the exercise of a
poiver of sale by (a) a legal mortgagee, (b) a trustee under an
ordioia.ry settlement of rerd estate, (c) a tenant for life selling
under the Settled Land, Act 1882.
A. {a) This power depends either on contract or on the
provisions of the Conveyancing Act 1881, and the mortgagee
is by the power able to convey the estate to the purchaser
free from the rule of equity that the mortgagor has an
equity of redemption, (h) This depends on the settlement,
and the trustee must keep strictly to its terms, and is
only able under its powers to sell, and he conveys to the
purchaser the estate vested in him by the settlement,
(c) This dejoends on the statute, and is a purely statutory
power, the tenant for life being able to pass a greater
estate than he himself possesses.
Q. Enumerate <nid classify the different kinds of poivers
of sale.
I
114 THE student's GTTIDE TO THE LAW OF
A. (1) Common Law Powers, which take effect apart from
the Statute of Uses. Thus, a direction in a will that X, who
takes no estate in lands, should have a power of sale over
them, would be a Common Law power, to be carried out by
bargain and sale in exercise of a Common Law authority.
The power given by the Settled Land Act 1882, to a tenant
for life to sell and convey, is an analogous power. All powers
over personalty come under this head, as the Statute of Uses
has no application to personalty. (2) Equitable powers, e.g.,
the power of sale in a mortgage deed. (3) Powers operating
under 27 Hen. 8, c. 10, which may be either collateral or
relating to the land (appendant or in gross).
Q. What is a ijoiver of attorney? Hoiv should a deed,
executed under such a potver, be signed ? Is a, deed so executed
necessarily, or in any and what cases, invalidated by the
'previous death of the principal ?
A. A power of attorney is an authority under seal given
by one person to another to do a certain thing or to act
generally for hin:i, e.g., where one goes abroad. A deed
executed under such a power had formerly to be executed
in the name of the giver of the power,; but now the attorney
may execute the deed in his own name (44 & 45 Vict., c. 41,
sec. 46). Formerly, a deed executed under such a power
would be of no effect if the principal were already dead or
the power revoked ; but if the power of attorney was created
after 1882, and was (1) given for value and expressed to be
irrevocable, or (2) in any case expressed to be irrevocable for
a period not exceeding a year, which period had not expired
nt the time of execution, the death or revocation of the
principal makes no difference to the power. (45 & 40 Vict.,
c. 39, sees. 8 and 9.)
Q. Explain the doctrine of " Cy-pres," and state the classes
of cases and properties to which it is applicahle.
A. The principle of the doctrine is that where a testator
lias two objects, one primary or general, and the other
REAL AND PERSONAL PROPERTY. 115
secondary or particular, and the latter cannot take effect, the
Court will carry out the general object as near as may be
(cy-pres) to the testator's intention according to the law.
(Wharton's Law Lexicon.) It is applied (1) to real property
devised to an unborn person for life with remainder to his
eldest son and the heirs of his body, by giving an estate
tail to such unborn person ; (2) to charitable bequests, by
carrying out a general intention where the particular gift
fails ; and (3) to personal legacies accompanied by a condition
precedent or subsequent, by holding that a substantial
compliance with the condition is sufficient where a literal
compliance is impossible from unavoidable circumstances
without the fault of the legatee.
Q. Explain surrender and merger.
A. A surrender is the restoring or yielding up of an estate.
It is usually applied to giving up a lease before the term
expires, and its effect is to merge the estate of the surrenderor
into that of the surrenderee. It maybe (1) express, in which
case it must be in writing, and if of more than a three years'
term, by deed (29 Chas. 2, c. 3, sec. 3; 8 & 9 Yict., c. lOG,
sec. 8) ; or, (2 J implied by act and operation of law, which
is anything that amounts to an agreement by the tenant to
abandon, and by the landlord to resume, possession of the
demised premises, e.g., delivery and acceptance of keys or
creating a new tenancy. A surrender of copyholds is the
giving up of the legal tenancy by an admitted tenant to the
lord of the manor, either as a relinquishment of his estate,
or as a means of conveying it to another. Merger is the
annihilation by act of law of a particular estate in an expec-
tant estate, consequent upon their meeting in the same
person, in the same right, and without any intermediate
estate (or where the estates so meeting are both freehold,
subject only to an intervening term of years). An estate tail
will not merge in the fee simple, because of the Statute De
Donis ; and any interest which is not an actual estate (e.g., an
I 2
llfi THE student's CtUIUE TO THE LAW OF
iuteresse termini, or a contingent interest) does not merge in
an immediate estate. Where tithe rent-charge, and the land
out of which the same is payable, belong to the same owner,
he is empowered by statute to merge the tithe rent-charge
in the land by deed with consent of the Land Department of
the Board of Agriculture. (6 & 7 Wm. 4, c. 71.)
8. — Uses and Trusts.
Q. State the efect of the first section of the Statute of Uses.
Does it apply to leaseholds for years ?
A. Where one person is seised to the use, confidence, or
trust of another, the section (1) turns the use, confidence,
or trust into an estate, i.e., says the legal estate shall be in
the cestui que use, and (2) vests the estate .of the person
seised in the cestui que use for the same estate that the
latter had in the use. The section enables a freeholder to
create a term of years which requires no entry by the
lessee to perfect it, and upon this depended the efficacy of
the conveyance by lease and release under the statute ;
but it does not enable a lessee for years to transfer his
leasehold interest or create a sub-lease. (Elphinstone, '20.) •
Q. Wheniuas the Statute of Uses passed? What ujas its
object, and ivhat has been its ejfect in conveyancing ? In what
case is it necessary, and in what case is it viinecessary to
limit a, use in rovreyance of freeholds '!
A. In the reign of Henry 8 (27 Hen. -8, c. 10). Its
object was to put an end to the practice of conveying land
to uses. Its direct effect in conveyancing has substantially
been only to add the words 'to the use of" to conveyances ;
but, beyond this, it enables various limitations of the use,
with its accompanying estate, to be made which, could not
l)e made directly of the estate. It is necessary to limit
a use where there is no consideration ; or there is more
REAL AND PERSONAL PROPERTY. 117
than one person named, and it is desired that one shall
take the legal estate, and another the equitable estate ; also
where, in a deed, limitations by way of executory interest
are desired.
Q Distinguish a use from a trust, and trace the history of
the distinction.
A. By a use is meant the first use declared, being one
which the Statute of Uses converts into the legal estate ;
whilst by a trust is meant a second or subsequent use on
which the statute does not operate, but which confers,
nevertheless, an equitable or beneficial estate. After the
Statute of Uses, it was held in Tyrrell's Case that there
could not be a use upon a use ; and upon this the Court of
Chancery held that an equitable or beneficial estate was
created by the subsequent use which is called a trust.
Q. WItat is meant by saying that a conveyance operates by '/^
transmutation of jjossession? Does a conveyance in fee
simple made (a) by a tenant for life under the powers of the
Settled Land Act, (b) t)y trustees under the poiver of sale
formerly inserted in a strict settlement, operate in this
manner J^
A. That the legal estate or seisin passes at common law
or by the operation of some statute other than the Statute of
Uses — in contradistinction to a conveyance which operates
as the declaration of a use only, so that the grantee gets the
legal estate by virtue of the Statute of Uses. In the former
class, if uses are declared on the seisin of the purchaser,
such uses give the legal estate ; in the latter class, the uses
merely give an equitable estate, as the Statute of Uses is
already exhausted. («) Apparently this conveyance may
operate either by transmutation of possession or as a declara-
tion of uses ; in practice, it is always framed to operate by
transmutation of possession, {b) This operates as a declara-
tion of a use, and not by way of transmutation of possession.
(Goudeve's liealty, 803, 305.)
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118 THE student's GUIDE TO THE LAW OF
Q. A firantu freeholds to B "to hold to B and his heirs.''
State ivhat becomes of the legal estaie ivhen the conveyance is
made (a) for good (b) for valuable (c) without any considera-
tion. Give reasons for your statement.
A. In cases (a) and (c) there is a resulting use to the
grantor which gives him the legal estate under the Statute
of Uses ; but in case (b) the valuable consideration implies a
use in favour of B, who therefore becomes the legal owner.
Q. A grants freeholds to B "to hold to B and his heirs "
to the use of C for life, u-itli reriiainder to the use of D and his
heirs. What estates, if any, do B, C and I) respectively take'?
Give reasons for your answer.
A. The habendum may explain ur enlarge the premises
but not lessen or contradict them. So that a fee simple is
passed through the grantee to uses (B), and by the Statute
of Uses C gets a legal estate for life with a legal remainder in
fee simple to D.
Q. What methods of conveyance of land capable of being
now adopjted opjerate pjartially , and u-hat entirely, under the
Statute of Uses ?
A. Those operating partly under the Statute of Uses are
— (1) a feoffment to uses, which is a Common Law con-
veyance accompanied by a declaration of use of the estate
limited in fee or for life, and ('!} a deed of grant to uses. A
bargain and sale and a covenant to stand seised operate
entirely under the Statute of Uses. A lease and release
consists of a limitation of a use under the Statute with a
Common Law limitation added. (Edwards, '6b^S, 360.)
Q. Distinguish the technical mode of operation of the
folloiving assurances: — ^^ Lease,'" ''^ release,'^ *^ sm^render,'^
" bargain and .svcie," " grant."
A. Lease of land at common law is made by a gi'ant of
the land for the term of years intended to be created,
followed by actual entry of the lessee, the grant merely
passing an intercssc fcnnini ; but a lease of an interest lying
REAL AND PERSONAL PRUi'EKTi'. 119
in grant {e.g., advowson, right of common) takes effect by
virtue of the grant merely. Belease is a deed conveying a
further interest in land to a person already in possession,
such further interest passing by the deed without further
ceremony. Surrender is a conveyance of an estate for life
or years in possession to one who has an immediate remainder
or reversion in which the estate conveyed is capable of being
merged ; the deed expresses that the surrenderor yields up
his interest to the surrenderee, and the estate surrendered
merges at once without any actual delivery of possession.
Bargain and sale is a contract to sell an estate accompanied
by payment of the price ; this gives rise to an implied use in
the purchaser and the Statute of Uses at once gives the pur-
chaser the legal estate without entry ; it must now be by
deed enrolled under 27 Hen. 8, c. IG. Grant is a deed by
the execution of which any interest in real property (except
an estate in possession in a corporeal hereditament) can be
passed at common law, and since 8 & 9 Yict., c. 106, such
exception may also be passed. (Edwards, 315, 317, 318, 325,
814, 328.)
Q. In a cuHve(/ance on sale of freehold land the ordinary
form of the hahendurii is " To hold the said premises unto the
purchaser and his heirs to the use of t/ie iic rchaser, his heirs,
and assif/ns, for ever.''' Wfdch of those ivords are, and ivhich
of them (ire not essential, and tvhy !
A. The words " to the use," &c., are not required, for the
purchaser pays a valuable consideration and the preceding
part of the habendum is all that is needed. If the convey-
ance had been voluntary, all the words given above are
needed, otherwise there would be a resulting use to the
grantor which would revest the legal estate in him.
(}• What difference in ejfed is there bettveen a limitation in
a deed unto and to the use of A and his heirs, and a limita-
tion to A and his heirs to the use of B and his heirs ?
A. In the lii.-t ca^e A takes the legal and l;enehcial estate,
X
^
120 THE student's GUIDE TO THE LAW OF
not by force of the Statute of Uses, for there is no one seised
to the use of anotlier, but he is in by Common Law. In the
second case A has nothing, being merely a conduit pipe for
passing the estate to B, and B will have a legal and bene-
ficial estate ; but B is here possessed of his estate not by the
Common Law, but by force of the Statute of Uses.
(J. If land id conveijed bi/ deed to A to the use of B, his heirs
and assigns, and A dies, what happens f
A. The estate granted to B determines, as only an estate
for A's life is passed through A, and the person to whom the
use is granted cannot have a larger estate than is passed
through the grantee to uses or conduit pipe.
Q. What were the objects and advaidayes of using the
conveyances called a bargain and sale, and a lease and
release ?
A. A bargain and sale was used to convey freeholds
without the inconvenience and publicity of a feoifment with
livery of seisin. A lease and release was used to avoid the
necessity of inrolment under 27 Hen. 8, c. 16. A bargain
and sale prior to 27 Hen. 8, c. 10, created a use enforced by
a Court of Equity though disregarded by Common Law
Courts ; the statute turned this use into possession ; 27
Hen. 8, c. 16, required a bargain and sale of freehold to be
by deed, enrolled at Westminster within six months. But
as the last-named statute did not apply to a bargain and sale
for a term of years, whilst the Statute of Uses did (if created
by a freeholder), the practice was adopted of making a bargain
and sale for a year, which gave the lessee the feudal possession
without entry, and then executing a deed of release dated
the following day, by which the entire fee simple was passed
to the bargainee.
Q. Explain the operation of the common conveyance called
lease and release. Bid either of the deeds by which this
conveyance was ejected operate by transmutation of
possession '/
REAL AND PEKSONAL PROPERTY. 121
A. The lease operated under the Statute of Uses and the
release at Common Law. The lease had to be made by the
freeholder, and took the form of a bargain and sale for value
for a year ; this operated as a declaration of a use, but did
not fall within the Statute of Inrolments, and the lessee
immediately on the execution of the lease became seised in
possession without actual entry under the Statute of Uses ;
and being in possession he could by the Common Law take
a release of the reversion in fee. The lease (or bargain and
sale for a year) operated under the Statute ; the release
operated by transmutation of possession.
Q. Explain and illustrate — " Even now a common imr-
chase deed of a piece of freehold land cannot be explained
ivitliout (joing back to the reign of Henry 8, or an ordinary
settlement of land 'without liaving recourse to the laivs of
Edivard 1."
A. (1) In a purchase deed the land is conveyed unto and
to the use of the purchaser. The words in italics were ren-
dered necessary by the Statute of Uses in voluntary con-
veyances to prevent a resulting use of the legal estate to the
grantor ; and although the valuable consideration renders
them unnecessary in the purchase deed, they are always
inserted. The Statute of Uses does not really apply to such
a limitation, as it only relates to cases where land is conveyed
to X to the use of Y ; and where the conveyance is unto and
to the use of X, X is said to be in by the Common Law.
(2) In an ordinary settlement of land, uses are always inserted,
which can only be explained by reference to the Statute of
Uses ; and estates tail are limited to the first and other sons
of the marriage, and they can only be explained by reference
to the Statute De Donis which created them.
Q. Explain the doctrine of Scintilla juris.
A. Scintilla juris was a doctrine by which it was con-
tended that, where lands are conveyed to B and his heirs to
the use of A and his heirs until some event {e.g., a marriage).
122 THE student's guide to the law of
and then to the use of C and his heirs, a possibihty of seisin
remained in B until the event sufficient to enable C's use to
be transmuted into the legal estate when the event happened ;
it was abolished by 23 & 24 Vict., c. 38, sec. 7, enacting that
every use limited by a conveyance shall take effect by force
of the seisin originally vested in the grantee to uses, i.e., B.
9. — Alienation Inter Vivos.
Q. Describe a feoffment and its necessary incidents. Has
it any pecidiar efficacy at the present day / If afeoffment be
made to A and his heirs in trust for B and his heirs, ivhat
estates do A and B respectively take ?
A. A feoffment was the Common Law conveyance used
to pass a freehold estate in possession in a corporeal
hereditament, and was perfected by livery of seisin {i.e.,
delivery of the feudal possession) which was either (1) livery
in deed, which took place on the lands, and could be per-
formed by a deputy, or (2) livery in law, which took place
within sight of the lands ; writing was unnecessary until
29 Car. 2, c. 3, made it so by sec. 1 as to creation, and sec. 3
as to assignment of estates in land : by 8 & 9 Vict., c. 10(j, it
must be by deed after 1st October, 184;"5, except when made
by an infant under tlie custom of gavelkind ; the word " give "
was the technical term used in enfeoffing another. The
publicity of delivery made a feoffment operate by wrong where
the owner in possession of an estate granted out a larger
interest than he possessed, so as to disseise the lawful owner
until he re-asserted his estate by exercising his rights of
entry ; since 1845 no feoffinent can operate by wrong, 8 el- 9
Vict., c. lOG. The word "give" in a feoffment implied a
warranty of title; but since 8 & 9 Vict., c. 106, this is no
longer so. A feoffment may still be used, but has now no
practical advantage. It is the basis on which modern deeds
REAL AND PERSONAL PROPERTY. 123
have been formed. By the Statute of Uses, 21 Hen. b,
c. 10, A takes nothing, hut is a mere conduit pipe to pass an
estate to 13, who gets the fee.
Q. How far is it correct to sai/ that a man cannot leijallij
convey to himself ?
A. At Common Law a man could not occupy the position
of grantor and grantee, and thus two conveyances were
needed — (1) a conveyance to a third person, and (2) a con-
veyance from such third person to the original grantor, or to
him and another. But under the Statute of Uses, one con-
veyance only is needed, as the interposition of a grantee
to uses enables the grantor to settle his own fee simple on
himself for life or in tail, or to convey it to himself and
another. And since 1881, freehold land can be conveyed
by a man to himself jointly with another without the inter-
position of a grantee to uses (44 & 45 Vict., c. 41, sec. 50.)
Q. Explain the different ejects of executing a contract for
sale in the case of real estate and personal cliattels respectively.
A. As regards real estate, the legal ownership remains in
the vendor until a proper deed of conveyance is executed ; and
although in equity the lands belong to the purchaser and the
purchase-money to the vendor, at law each part}- merely
acquires the right to sue the other for damages on breach of
the contract. But as regards personal chattels, the legal
ownership is transferred from the vendor to the purchaser
without the necessity of anything further, provided the con-
tract contains the legal requisites for a sale.
Q. State the different modes of alienation of personal
chattels.
A. (1) By a mere gift accompanied by delivery — and the
words of gift and the delivery may be contemporaneous, or