Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

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Cro. Eliz. 901; Noy, 46) is strong evidence against the special
occupancy of the executor, whether as regards things incorporeal or
corporeal. For the executor seems to be in a no better position, as
regards things incorporeal, than the administrator ; and his position,
as regards things corporeal, is certainly no better than his position as
regards things incorporeal.



* That enactment did not extend to estates ^r atdre vie either in oopyholdfl
or in incorporeal hereditaments. See now, 7 Will. 4 & 1 Yict. c. 26, s. 2. But
there was at common law no general occupancy of copyholds.



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ESTATES PUR AUTRE VIE. 83

The tenant jtwr autre me had, at common law, an absolute right of
alienation inter vivoSy whether his heir was entitled as special occupant
or not ; and, in the latter case, the estate of the assign was not affected
by the death of the assignor. Estates pur autre me were not made
deviseable by the 32 Hen. 8, c. 1, or 34 & 35 Hen. 8, c. 5.

By the Statute of Frauds (29 Cax. 2, c. 3) s. 12, it is enacted that
any estate pur autre me shall be deviseable ; and, if no devise be made,
shall be chargeable in the hands of the heir, if it shall come to him by
reason of a special occupancy, as assets by descent, as in case of lands
in fee simple; and in case there be no special occupant thereof, it
shall go to the executors or administrators of the party that had the
estate thereof by virtue of the grant, and shall be assets in their
hands.

It is commonly said, that this enactment made tenancy by general
oocupancy for the future impossible. (Hturg. n. 6 on Co. litt. 41 b.)
But Preston has suggested that general occupancy might still be
possible, during the interval between the death intestate of a tenant
pur autre vie and the grant of administration. (1 Prest. Conv. 44.)

In Oldham v. Pickering (2 Salk. 464 ; Garth. 376) it was decided
that the estate in the executor's hands was assets only for the payment
of debts, and that, these being satisfied, the executor, being " as it were
the occupant," could not be compelled to make any distribution. In
oonsequence of this decision the 14 Gf^eo. 2, c. 20, s. 9, enacted that (if
there be no special occupant) estates J9t(r autre vie^ so far as not devised,
should be applied and distributed in the same manner as the personal
estate.

The 29 Oar. 2, c. 3, s. 12, and the 14 Geo. 2, c. 20, s. 9, are repealed
by the Wills Act (7 Will 4 & 1 Vict. c. 26) s. 2, but substantially
re-enacted and extended to copyholds and incorporeal hereditaments
by sects. 3 and 6.

This estate, though a tenement, is not intailable by virtue of the
statute De Bonis y not being a hereditament. {Chrey v. Mannocky
2 Eden, 339.) If it be conveyed subject to limitations which would
create an entail in an inheritable tenement, any person entitled as
quasi-tenant in tail in possession can, without barring the quasi-
entail, convey the whole estate by any assurance which would pass
an estate pur autre vie. (Feame, Cont. Eem. 10th ed. 496, and the
cases cited in the margin.) It seems to have been thought by Lords
Northington and Kenyon, that, since these estates have been made
deviseable, quasi-entails of them might be barred by will. (See Doe
V. Luxton^ 6 T. E. at p. 293.) But quasi-remainders limited over
upon the quasi-estate tail cannot be barred by will. {Dillon v. Dillon j
1 Ball. & B. 77; Campbell v. Sandj/s^ 1 Soh. & Lef. 281 ; Allen v.

g2



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84 01^ ESTATES.

Alleiiy 2 Dr. & War. 307.) And a quasi-tenant in tail in remainder
cannot, by conveyance inter vivos, bar the quasi-remainders over,
without the concurrence of the person entitled in possession. {Allen
V. Allen, ubi supra,) If the estate is suffered to descend, it will
descend according to the form of the quasi-entail ; and any quasi-
remainders which may be limited over will take effect, if they become
interests in possession during the life of cestui que vie, unless previously
displaced by any such conveyance as aforesaid.

The opinion expressed by Preston (1 Prest. Abst. 438) that an
executory limitation, annexed to the limitation of an estate pur autre
vie to a man and his heirs general, cannot be defeated by the person
who for the time being is entitled subject to the executory limita-
tion, has recently been affirmed by judicial decision. {Re Barber^ s
Settled Estates, 18 Ch. D. 624.) But such an executory limitation,
if it be to take effect on default or failure of issue, will now, by the
Conveyancing Act, 1882, s. 10, become void so soon as there is living
any issue who has attained the age of twenty-one years, of the class
on default or failure whereof the limitation was to take effect.



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( 85 )



Fart m.-Oir ASSUSANCES.



chapi-er xvm.

OF ASSUEANCES IN QENEEAL.

Assurances (other than testaments) are commonly divided into
assurances operating by the common law, and assurances operating
by the Statute of Uses. But it must be remembered that maxij of
the latter derive part of their operation from the common law. It
must also be remembered that the Statute of Uses, though its influence
npon assurances is greater than that of any other statute, is not the
only statute upon which certain kinds of assurances depend for their
operation or validity. The following examples are worthy of notice : —

1. Modem disentailing assurances and assurances by married women
and their husbands derive their operation partly from the Fines and
Recoveries Act (3 & 4 Will. 4, c. 74). And because that statute, for

. the purpose of barring an entail, only superadds inrolment to the
assurances otherwise appropriate to the conveyance of « fee simple
(sect. 40), it follows that disentailing assurances may also derive part
of their operation from the common law and from the Statute of
Uses.

2. It has been remarked by Butler, and is indeed obvious, that in
the old-fashioned assurance styled " by lease and release," the lease
alone derived its operation from the Statute of Uses : the bargainee
for a yeex imder the lease, so soon as his possession was executed by
the statute, being capable at common law of taking a release of the
reversion. The conveyance could be made without the help of the
Statute of Uses, by making the lease a common law lease, instead of
a bargain and sale for a year, and causing the lessee to take actual
possession under it, instead of relying upon a constructive possession
executed by the statute : a method which was sometimes employed in
conveyances by corporations, who, not being capable of being seised
to a nse,* could not, by means of a bargain and sale, raise a use
capable of being executed by the statute. The 4 & 5 Vict. c. 21, s. 1,
superseded the need for the lease, and gave to the release alone, if
expressed to be made in pursuance of the Act, a purely statutory

• See p. 89, in/ra. For the same reason, corporations not unfrequently con-
veyed freeholds in possession by feoffment, appomting an attorney under their
common seal to give livery of the seisin.



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86 ON ASSURANCES.

operation as a oonveyanoe of estates of freehold in possession* This
Act was in force from the 15th May, 1841, till the 7th August, 1874,
haying been repealed by the Statute Law Eevision Act, 1874 (No. 2).
But it wsB seldom used in practice, after the coming into operation of
the 8 & 9 Vict. o. 106, on the 1st October, 1845. The writer has met
with an example of its use in a deed dated August, 1852.

3. During the time that the 7 & 8 Vict. c. 76, remained in force —
viz., from the 31st December, 1844, to the Ist October, 1845— another
statutory method existed of conveying estates of freehold in possession.
This was not confined to a release, and was not expressed to be made
in pursuance of the Act.

4. The last-mentioned Act was repealed by the 8 & 9 Vict. c. 106,
which, without repealing the 4 & 5 Vict. c. 21, practically superseded
it by providing a more convenient form of assurance. Sect. 2 enacts
that after the 1st October, 1845, all corporeal tenements and heredita-
ments shall, as regards the conveyance of the immediate freehold
thereof, be deemed to lie in grant as well as in livery. All modem
assurances of estates of freehold in possession, except a feoffment and
a bargain and sale inroUed, depend for their validity upon this statute.

Conveyances of estates of freehold in possession, taking effect by
virtue of any of the above-mentioned statutes, 4 & 5 Vict. c. 21,
7 & 8 Vict. c. 76, or 8 & 9 Vict. c. 106, owe all their efficacy to flie
particular statute and at common law would be wholly inoperative ;
unless by reason of peculiar circumstances they can be construed to
take effect by some means foreign to their purport. (See the notes to
Chester v. Willan, 2 Wms. Saund. 283.)

Sect. 49 of the Conveyancing and Law of Property Act, 1881,
declares, that the use of the word grant is not necessary in order to
convey tenements or hereditaments, corporeal or incorporeaL Since
no substitute is mentioned, it is not quite clear what would have been
the effect of this enactment, if the word grant had been otherwise
necessary. It is probable that the word convey ^ which occurs frequently
in that Act, will in future be often used.

6. Sect. 65 of the same Act, amended by sect. 11 of the Con-
veyancing Act, 1882, enacts that, under certain circumstances and
subject to certain restrictions, the imexpired residue of a long term of
years may be enlarged into a fee simple, by some one or other of
sundry persons entitled in right of the term. Such enlargement is
in no way dependent upon the concurrence of any person entitled in
reversion.

6. Sect. 15 of Lord Cranworth's Act (23 & 24 Vict. c. 145) enables
the person exercising the power of sale conferred by the Act upon
mortgagees, to vest in the purchaser all the estate and interest which
the mortgagor had power to dispose of ; but, in the case of oopy-



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OF ASSURANCES IN OBNERAL. 87

holds, only the beneficial interest. This enactment was repealed by
the Conveyancing and Law of Property Act, 1881. It created a
statutory power, by which mortgagees were sometimes enabled to
convey a greater estate than was vested in them.

The above-mentioned enactments, and also all enactments creating
statutory powers, which give to the deeds to which they relate an
effect or modus operandi which could not have been given to them by
the mere act of the parties, do not stand upon the same footing as the
8 & 9 Vict. cc. 119, 124 ; Lord Cranworth's Act, with the exception
of sect. 15 above mentioned ; or sects. 6, 7, 18, 19, 34, and 63 of the
Conveyancing and Law of Property Act, 1881, and similar enact-
ments : which merely aim at dispensing, either wholly or partially,
with the actual expression by the parties of something which they
were competent to effect without any legislative assistance.

Excepting only the capacity of being executed into legal estates,
uses were in all respects the same before the statute as afterwards.
Our early jurists regarded the legal estate in fee simple, and the
oonterminous use, as being two separable things, commonly found
together, and primd facie presumed to be united in the legal tenant ;
but capable of separation, and having definite characteristics when
separated. When such separation took place, the use conferred the
right, both to take the profits of the lands, and also to call upon the
person having the legal estate to make such conveyances thereof as
the person having the use should think fit. The following proposi-
tions were clearly established from early times : —

(1.) Eegarded as a descendibk entity ^ the descent of the use followed
the descent of the thing of which it was the use. So that, (i) the use
of lands which were subject to no peculiar local custom, held for an
interest analogous to a common law fee simple, descended to the heir
general ; (ii) the use of gavelkind lands descended according to the
custom of gavelkind ; and (iii) of borough-english lands, according
to the custom of borough-english ; (iv) other peculiar local customs
affecting common law lands, when good in law, had the like effect
upon the descent of the use of them ; and (v) the use of copyholds
descended according to the custom of the manor.

And it was as impossible to change the course of descent of the
use as to change that of the legal estate. So far as the law permitted
new estates to be created and taken by way of purchase^ the use (like
the legal estate) could of course be made to go to any person what-
soever ; but by purchase only, not by descent, unless such person was
the next in the order of descent prescribed by the law.

(2.) The person entitled to the use {cestui que use) might alienate
the use, by conveyance inter vivos.



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88 ON ASSURANCES.

(3.) So also he might devise the use, before the 32 Hen. 8, although
the use was of lands which were not themselves deviseable.

(4.) By the statute 1 Eio. 3, o. 1, (which was not positively
repealed until 1863, -^hen it had for ages been quite obsolete,) cestui
que use was enabled to make conveyances inter vivos of the lands
themselves, which were good, not only as against cestui que use to
convey the use, but also as against his feoffee to uses, so as to convey
the legal estate. This statute never had any extensive operation.

In all essential characteristics these uses resemble what we now call
equitable estates, differing from them mainly by reason of the greater
complexity of limitation to which the ingenuity of conveyancers has
gradually subjected the latter. This greater complexity has pro-
ceeded pari passu with the increasing complexity in the limitation of
legal estate3 ; and both these developements are due, in a great mea-
sure, to the influence of the statute 27 Hen. 8, c. 10, commonly called
the statute for transferring uses into possession, or more briefly, the
Statute of Uses.

It seems strange that the legislature, when it enacted that uses
should be transformed into legal estates, should not have foreseen
that, unless at the same time people were forbidden to raise or declare
uses, they would soon take to raising and declaring uses as a method
of creating and conveying legal estates.

The result has been that the easy plasticity which the Court of
Chancery from early times permitted to the declaration of uses has
been, in a great measure, imported into the methods of creating legal
estates. Instead of the land stifling the activity of uses, the latter
have imparted their mercurial properties to the land.*

Moreover, since it was decided soon after the passing of the statute,
that no use could be limited upon a use (Bacon, Uses, 43 ; 2 Bl. Com.
335), it was only necessary to interpose a second seisee to uses between
the feoffee or grantee and the cestui que use, in order to restore the old
system of equitable estates or trusts : a device which gave occasion to
Lord Hardwicke's celebrated remark, that " a statute made upon great
consideration, introduced in a solemn and pompous manner, by this
strict construction, has had no other effect than to add at most, three
words to a conveyance." (1 Atk, 591.) But this lively rhetoric
must not be taken quite seriously ; nor is it quite clear whether he
wished that equity had refused to enforce the trust, or that the law
had consented to execute the seisin.

The above-mentioned decision, which only imports, when it is
rightly imderstood, that a use is not a hereditament vdthin the mean-

* ** And because uses were so subtle and ungovernable, as hath been said,
they have with an indissoluble knot coupled and married them to tiie land,
which of all the elements is the most ponderous and immoveable*" 1 Bep. 124.



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OF ASSURANCES IN GENERAL. 89

ing of the statute, has heen subjected to much petulant, if not
ignorant, censure. In the opinion of the present writer, it has been
-j^ell defended by Eowe, in his edition of Bacon on Uses, note 74,
p. 134.

The first and most important section of the Statute of Uses, abbre-
yiated by the omission of what is not necessary to the consecutive
construction, is as follows : —

'* That where any person or persons .... at any time hereafter shall .... be
Beised, of and in any .... hereditaments, to the use confidence or trust of any

other person or persons or of any body politic, by any . . means whatso-

eyer, ... in every such case all and every such person and persons and bodies

politic that . . . shaU have any such use confidence or trust shall .... bo

. . . deemed and adjudged in lawful seisin estate and possession of and in the
same .... hereditaments, .... to all intents constructions and purposes in the
law, of and in such like estates as they had or shall have in use trust or con-
fidence of or in the same."

The statute is expressly made applicable both to uses then in exists
ence and to those subsequently created. The following propositions
respecting the uses which are contemplated by it, follow naturally
from its language, and have always been taken as indisputable ; un-
less the case of Holland v. Boins or Bonhy 2 Leon, at p. 122, 3 Leon,
at p. 176, be thought to cast any doubt upon the 2nd : —

1. A person must be seised to the use.

2. Here person does not include body politic; as is shown by the

repeated omission of body politic when speaking of the person
seised and the repeated mention of body politic when speaking
of cestui que me. A corporation cannot be seised to a use.
(Bacon, Uses, 42, 57 ; and Eowe, note 113, p. 178, see p. 184

1 Eep. 122, 127 ; Fulmerston v. Steward, Plowd. at p. 103
and see p. 538; Shep. T. 508; 2 Prest. Conv, 255, 256

2 Sand. Uses, 5th ed. p. 27, note.) But a natural person
may be seised to the use of a corporation. And a natural per-
son, who is also a corporation sole, as a bishop, may be seised
in his natural capacity to the use of himself and his successors
in their corporate capacity. (Bacon, Uses, 64.)

3. Bince he is seised, his estate must be of freehold.

4. But the quantum of the interest contained in the use is not

necessarily equal to a freehold.

5. The person seised cannot be identical with the person entitied to

the use.* The common forms, habendum unto and to the use

• Unless ** there be a direct impossibility or impertinency for the use to take
effect by the common law " (Bacon, Uses, 63) ; in which case the seisee to uses



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90 ON A8SI7BAKCES.

of the grantee, &o., do not take effect by the Statute of Usefl,
but by the common law.

But Buch a declaration of a uBe to the grantee himself,
though it is not a use which is capable of being executed by
the statute, and though it has no effect upon the seisin which
would be in the grantee by the common law without it, never-
theless avails to make any subsequent use limited upon it,
incapable of being executed by the statute. Such a sub-
sequent use would be a " use limited upon a use,'* and would
take effect, if otherwise valid, as a trust.
It results from the foregoing considerations, that the main question,
upon which depends the theory of the raising of estates by way of
use, is as follows: — TIndtr what circumstances, and by what methods^
can a use be so connected with a seisin, that the person having the seisin
can be said to be seised to the use within the meaning of the Statute of
Uses; so that the use will be executed into a legal estate by the statute !

The outline of the reply to this question is contained in the follow-
ing propositions : —

(1°) Any person capable of transferring by conveyance a seisin
vested in himself to another, may, upon the making of such convey-
ance, declare any use or uses upon the seisin in the trtmsf erree, to or
in favour of any person or persons other than the transferree : which
uses, if valid as uses, will be executed by the statute.

The proviso, if valid as uses, imports that the decleupation of uses is
subject to restriction. Any use which contravenes the rule against
perpetuities is void. Moreover, no estate can be raised by way of use
except such as, in point of quantum, might be conveyed at the common
law ; and no course of devolution except that prescribed by the law
can be prescribed by way of use.

(2°) Under certain circumstances, a person having the seisin in
himself may raise or declare uses upon that seisin while remaining in
himself, which uses are capable of being executed by the statute.

These propositions explain the meaning of the common dictum^
that conveyances which take effect imder the statute operate some-
times by transmutation of the possession, and sometimes without
transmutation of the possession.

may Mmself take by the statute. Bacon goes on to enumerate three examples,
which are thus summed up by Sanders (1 Sand. Uses, 6th ed. p. 92) : —

fl.) Where the iise is limited to the feoffee (or other seisee to uses) in tail out
of nis own Ecisin in fee 8imj>le, and the remainder oyer to anotiier ;

(2.) Where the whole seisin in fee simple is conveyed to the feoffee, and many
esuites in the use are carved out of such seisin, one of which estates the feoffee
takes;

(3.) If the feoffee be seised to the use of himself and another jointly.

The case of a bishop seised in his natural capacity to the use of his church, is
not precisely another case in point; because the seisin and tiiie use are here
en autre droit.



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OF ASSURANCES IN GENERAL. 91

The following is a list of the principal assuranoes by which a seisin
may be, or might formerly have been, conveyed to another person
within the meaning of the first of the foregoing propositions : —

1. A fine ; and

2. A recovery; imtil these assurances were abolished by the

3 & 4 Will. 4, c. 74.

3. A feoffment.

4. A release of the reversion on an estate, less than a freehold, to

the person having the less estate.

The above-mentioned assurances convey the seisin by the
common law. Prom the fourth, by engrafting upon it a
bargain and sale for a yecu*, taMng its effect by the statute,
was derived the old assurance by lease and release.

5. Since the 8 & 9 Yict. c. 106, a grant of the seisin ; which is the

method now almost universally used.
The seisin being conveyed by any of the aforesaid methods, the
uses declared thereupon, if otherwise valid, are within the statute.

The assurances which may take effect by the statute without trans-
mutation of the possession, — Le.y by which, under peculiar circum-
stances, a person may raise or declare a use, capable of being executed
by the statute, upon a seisin vested in himself, — are as follows : —

1. A bargain and sale.

2. A covenant to stand seised to uses, in consideration of blood or

marriage : commonly styled, for brevity, a covenant to stand
seised.



Chapter XIX.

OF FINES AND RECOVERIES.

Since fines and recoveries now not only are obsolete, but do not exist,
it is unnecessary to add much to the remarks above made upon the
operation of these assurances when levied, or suffered, by tenant in
tail. ( Vide supra, Ch. XIV.)

These assurances were reckoned among the ^^ common assurances of
the realm ;" and the use of them was by no means confined to their
operation to bar estates tail. By reason of the statutory title gained
against strangers to the fine, under the 4 Hen. 7, c. 24, and 32 Hen. 8,
0. 36, by a non-claim of five years' duration, fines were extensively
used to strengthen doubtful titles ; and even, by a species of fraud,
to manufacture fictitious titles which, by a non-claim of five years'
duration, became indefeasible as against all persons who might have



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92 ON ASSURANCES.

made their claim at the time when the fine was levied. From this
point of view, it may be said that a fine operated to abridge to five
years the period allowed by the Statutes of Limitation for the pro*
secution of an adverse claim. A fine had also the further advantage,
that it gave an actual title; whereas the Statutes of Limitation
previous to the 3 & 4 Will. 4, o. 27, gave no title, but only barred
the remedy of the claimant.

The operation of a fine, levied with proclamations by force of the
statutes 27 Hen. 7, c. 24, and 32 Hen. 8, c. 36, was regulated by
these cardinal principles : —

(I'') Since strangers might, at common law, avoid a fine upon a
plea, partes finis nihil habueruntj which right was saved by
the last-mentioned statutes, it was necessary to the validity



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 12 of 53)