estates executed in possession at common law. Thus, in the case of a devise to B. for fifty years, if he should so long live, remainder to the heirs of his body, the remainder was held *void for the want to a *237 freehold to support it. But if the remainder had been to trustees during the life of B., remainder to the heirs of his body, in that case the contingent remainder had been good, because preceded by a vested freehold remainder to the trustees. The reason of the rule requiring a contingent remainder to be supported by a freehold, was that the freehold should not be in abeyance, and that there should be always a visible tenant of the freehold, who might be made tenant to the præcipe, and answer for the services required. It does not apply to contingent interests for years, for they were considered in the case of Corbet v. Stone, to be merely executory contracts. It will be sufficient if a right of entry exists in the rightful tenant of the particular estate, when the contingent remainder vests. The contingent remainder is not destroyed, though there be no actual seisin; for though a mere right of action will not, yet a right of entry will support a contingent remainder. Lord Holt, in Thompson v. Leach, illustrates the distinction by saying, that if there be a tenant for life with a contingent remainder over, and he be disseised, the whole estate is divested, but the right of entry remaining in the tenant will support the remainder; whereas, if, during the disseisin, the contingent remainder expectant upon the life estate does not vest before five years after a descent cast, the remainder Goodright v. Cornish, 1 Salk. Rep. 22. • Lord Mansfield, 1 Burr. Rep. 107. ¿ T. Raym. 140. 12 Mod. Rep. 174. is gone for ever, for the right of entry is turned into a right of action.a VI. Of remainders limited by way of use. Remainders may be limited by way of use, as well as by common law conveyances; but the operation which the statute of uses of 27 Hen. VIII. had upon contingent uses, was formerly a matter of great and pro*238 tracted discussion. *The history of the judicial controversy on this subject is a great curiosity; and though we have not much practical concern with it in the United States, it will well reward a few moments' attention of the diligent and inquisitive student, who desires to understand the progress, mutations, and genius, of the very complicated machinery of the English law of real estates. Before the statute of uses, the feoffees to uses were seised of the legal estate; and if they were disseised, no use could be executed until, by their entry, they had regained their seisin, for the statute only executed those uses which had a seisin to support them. After the statute of uses, there was great difficulty to ascertain where the estate, which was to support the contingent uses, resided. Some held, that the estate was vested in the first cestui que use, subject to the uses which should be executed out of his seisin; but this opinion was untenable, for a use could not arise out of a use. It was again held, that the seisin to serve contingent uses was in nubibus, or in custodia legis, or had no substantial residence any where; and the conclusion attached to these opinions was, that contingent uses could not be barred by any act whatever. Others were of opinion, that so much In Mississippi, the rule of the common law, that an estate of freehold cannot be made by deed to commence in futuro, is abrogated. Revised Code of 1824, p. 459. Delamere v. Sermon, Plowd. Rep. 346. of the inheritance as was limited to the contingent uses, remained actually vested in the feoffees until the uses arose. But the prevailing doctrine was, that there remained no actual estate, and only a possibility of seisin, or a scintilla juris in the feoffees, or releases to uses, to serve the contingent uses as they arose. The doctrine of scintilla juris, Mr. Sugden says, was first started in Brent's case, in 16 Eliz.; and the judges had great difficulties in settling the construction of contingent uses. One opinion was, that the feoffees had a fee-simple determinable, to continue until the future use arose, and that they were not divested of the whole inter est until the execution of all the uses limited #239 upon the feoffment; but a sufficient portion of the fee-simple to serve the contingent uses remained vested in the feoffees. It was also held, that the estate, in the interim, resulted to the feoffor. A majority of the court agreed, that the statute divested the feoffees of all the estate when the contingency arose by a person being in esse to take. In Manning and Andrew's case, the judges were equally unsettled in their notions respecting the operation of the statute on contingent uses. Some of them were of opinion, that a sufficient actual estate remained in the feoffees to support the uses, while others thought that the feoffees were, by the statute of uses, made mere conduit pipes, through which the estate was conveyed to the uses as they arose, and they were divested of all estate. The statute drew the confidence out of the fcoffees and reposed it upon the land, which rendered the use to every person entitled in his due season under the limitation. According to this opinion, the feoffees had no right of entry, and could not, by release, con firmation, or otherwise, do any thing to the prejudice of the uses limited. In a few years Chudleigh's case arose, and has ever been regarded as a great and leading case on the doctrine of contingent uses. The principal question in that case was concerning the power of feoffees to uses, to destroy contingent uses by fine or feoffment, before the uses came into being. It was a very complex settlement case. Lands were conveyed by feoffment to feoffees, in a series of successive uses, and, among others, to the use of the feoffees and their heirs, during the life of the settler's eldest son, remainder to the grandsons of the settler, successively in tail, with remainder to the right heirs of the eldest son. The feoffees seised to these uses after the death *240 of the feoffor, enfeoffed his eldest son in fee without consideration, and with notice in the son of the uses in the settlement. The eldest son had a son born thereafter, and after that birth he conveyed to a stranger in fee; and the question arose between the title of the stranger under the conveyance, and the title of the grandson under that settlement. The point was, whether the act of the feoffees destroyed the contingent remainders, so that a use could never arise out of the estate of the feoffees, when the contingency afterwards happened by the birth of the grandson. The judgment of the court was, that by the feoffment the whole estate was divested, and drawn out of the feoffees, and the future contingent uses destroyed. ▪ 1 Co. 120. 1 Anderson, 309, Mr. Sugden says, that Ch. J. Anderson's report of this case is indisputably the best; and an abstract of the translation of it is in Gilbert's Uses, by Sugden, app. 521. b Chudleigh's case was argued several times before all the judges of England, and we find the great names of Bacon and Coke among the counsel who argued the cause. The case is replete with de sultory and curious discussion, and some of it Lord Hardwicke admitted to be so refined and speculative, as not to be easily understood. The disposition and policy of the judges was to check contingent uses, which they deemed to be productive of The minority of the judges held, that there was no estate, right, or scintilla juris remaining in the feoffees, and that the notion of a scintilla was as imaginary as the Utopia of Sir Thomas More. The seisin which the feoffees had at the beginning by the feoffment to them was sufficient to serve all the future uses when they came in esse; and it was not in their power to affect, suspend, or destroy, the future uses, which were in the interim in nubibus, and in the preservation of the law, and the cestui que use was, consequently, entitled. But a large majority of the judges decided, that the feoffment made by the feoffees divested all *the estates, and the *241 future uses; and they assimilated contingent uses to contingent remainders, and endeavoured to bring them within the same rules, and render them liable to be destroyed in the same manner. They held, that the statute could not execute any uses that were not in esse, and that contingent uses might be destroyed or discontinued before they came in esse, by all such means, as, for instance, by feoffment, forfeiture, or release of the estate, as uses might have been discontinued or destroyed by the common law. They held, that not a mere scintilla remained in the feoffees, but a sufficient estate to serve and support the contingent uses when they came in esse, unless their possession was disturbed by disseisin or otherwise, and then they would have a right of entry, unless they did some act to bar it. One great principle of policy governed the judges in this case, in holding mischiefs, and tending to perpetuities. They regarded the statute of uses as intending to extirpate uses, which were often found to be subtle and fraudulent contrivances; and their evident object was to restore the simplicity and integrity of the common law. Notwithstanding the scholastic and mysterious learning with which the case abounds, it carries with it decisive evidence of the acuteness, industry, and patriotic views of the sages of the law at that day. Lord Campbell says, that Bacon's argument in this case, was one of the most masterly ever heard in Westminster Hall, and it completely demolished the subtle device to create a perpetuity. His argument was afterwards shaped into a "Reading on the Statute of Uses." |