tenant from whom rent is in arrear, shall desert the premises, and leave them uncultivated or unoccupied, without goods thereon subject to distress, sufficient to satisfy the rent, the lessor, after a month's notice in writing, posted on a conspicuous part of the premises, may enter thereon, and so put an end to the tenancy. (V. C. 1873, c. 134, § 6.)

CHAPTER X.

OF QUALIFICATIONS OF INTEREST IN REAL PROPERTY.

2. Qualifications of Interest in Real Property.

The qualifications of the interest which a land-ower has in his real property are by means of, (1), Uses; (2), Trusts; and (3), Conditions;

W. C.

1o. Uses.

The doctrine touching uses may be presented under the three heads of, (1), The origin, nature, and history of uses prior to the statute of 27 Hen. VIII, c. 10, usually called the statute of uses; (2), The English statute of uses, 27 Hen. VIII, c 10; and (3), The Virginia statute of uses;

W. C.

1a. The Origin, Nature, and History of Uses prior to the statute 27 Hen. VIII, c. 10, usually called the Statute of Uses.

Uses and trusts are in their origin the same, and in their nature very similar. They both were derived from the fidei commissum of the Roman law, which usually was created by will, and was the disposal of an inheritance to one, in confidence that he should convey it, or dispose of the profits, at the pleasure of another. And the execution of such trusts having, before the time of Augustus, been left to the honor of the trustee, he, in view of some gross instances of unfaithfulness, instituted a particular magistrate, the prætor fidei commissarius, to enforce the observance of the confidence reposed. (2 Bl. Com. 327-'8; 1 Spence's Eq. Jur. 436-'7.)

The simplicity of the common law, for the most part, eschewed the idea of one man being the ostensible owner of lands, whilst another was entitled to the beneficial enjoyment, or profits, holding such an arrangement to be repugnant to the professed object of the transaction, unfriendly to the interests of society, and calculated to encourage fraud. Yet, even at common law, similar provisions, under other names, were not wholly unknown. Thus, during the reigns of Edward II and Edward III, Mr. Reeves mentions vari

ous instances of feoffments on condition, entries in auter droit, &c., which had the effect of creating, to some small extent, a separation between the actual and beneficial ownership. It is admitted, however, that these property arrangements assumed a much more decided shape than they had ever had before, in the latter part of the reign of Edward III, (about A. D. 1370,) the statute 50 Edw. III, c. 6, (A. D. 1377,) containing provisions alluding to the taking of the profits of lands as apart from their occupancy, in the manner of what was afterwards called a use. The introduction of uses at that period is generally ascribed to the craft of the ecclesiastics, who expected thus to evade the existing statutes of mortmain, which forbade corporations, and especially religious corporations, to acquire lands, but did not extend the prohibition to uses. Blackstone is of opinion that the countenance which uses received, and the very rapid adoption of them thoroughout the realm, were owing to the protection of the court of chancery, presided over by an ecclesiastic; but the later and more thorough explorations of Mr. Spence, have made it more than probable that the ecclesiastics derived little benefit from the court of chancery, which was indeed, in the latter years of Edward III, presided over by a succession of laymen, and was not acknowledged as having a right to the vast powers it has since exercised, until after the statute 15 Ric. II, c. 5, had deprived the Church of the future fruits of the enterprising ingenuity of the clergy, by embracing uses, with lands, within the purview of the statutes of mortmain. The truth seems to be that, while uses were probably at first largely employed by the clergy, they were welcomed with eagerness by the bulk of the population, who found in them the relief they coveted from the doctrine of feuds, which society had partially outgrown At all events, the newly devised qualification of ownership flourished vigorously, partly by a judicious selection of trustees, partly by the ghostly influence of the confessional, and in part by the protection afforded by the King in council, and in some instances by the parliament itself. (2 Bl. Com. 328, 271-22; 1 Spence's Eq. Jur. 440, 339–40; 3 Reeves' Hist. Eng. L. 176 & seq.)

Notwithstanding the clergy lost the peculiar benefit of uses by the statute 15 Ric. II, c. 5, yet they spread with rapidity amongst the laity; and during the civil commotions between the houses of York and Lancaster (A. D. 1399 to 1485), grew almost universal as a means of securing estates against forfeitures, whilst each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Henry V (A. D. 1415), it being no longer possible, in consequence of the vast multi

plication of uses and trusts, to leave their "enforcement to the dictates of honor, the coercion of the confessor, or the precarious interposition of the crown or the parliament, the chancellor, as judge for matters of conscience, began to entertain applications to compel their observance, which became progressively more numerous until the reign of Edward IV (A. D. 1461), when they assumed, under the forming hand of the court of equity, some regular system. (2 Bl. Com. 329; 1 Spence's Eq. Jur. 443-'4.)

At first it was held that the chancery could give no relief except against the trustee himself, and not against his heir or alienee. In the reign of Henry VI (A. D. 1422 to 1461), this doctrine was changed with respect to the heir, and afterwards, by parity of reason, with respect to such alienees, as either paid no valuable consideration, or purchased with notice of the trust. But a purchaser for value, without notice, might hold the land, as he may still, discharged of the trust. (2 Bl. Com. 429-'30; 1 Spence's Eq. Jur. 445.)

The qualities which were admitted to belong to uses,that is, to the interest of the cestui que use, will sufficiently show why they were so acceptable to the laity of England. Thus, whilst it was held that nothing could be granted to a use whereof the use is inseparable from the possession; as annuities, ways, commons, quæ ipso usu consumuntur; or whereof the seisin could not be instantly given; and that a use could not be raised without a sufficient consideration, either valuable or of natural love and affection, at least where there was no actual transfer of the possession of the land to the trustee; yet, when once created, the courts of Equity ascribed to them the following attributes: First, Uses were descendible to heirs, according to the rules of the common law; second, Uses might be assigned by deed only, without livery of seisin, and be devised by will, qualities of great value and importance, which the English people had enjoyed (at least the power to devise) before the Conquest, and the privation of which, by the introduction of feuds, soon after that event, they had never ceased to deplore; third, Uses were not liable to the feodal burdens, being. held of nobody; and although the lands were liable in the hands of the trustee, yet care was taken to have such a trustee as would make those burdens as few and as light as possible; fourth, Dower and curtesy were neither allowed, no trust being declared for the benefit of the consort, at the original creation of the use; fifth, Uses were not liable for the debts of cestui qui use, the common law courts not acknowledging his interest, and therefore, of course, having no process by which to reach and subject it. (2 Bl. Com. 330-31; 1 Spence's Eq. Jur. 441-'2, 446 & seq.)

Some of these attributes were open to very serious objections, most of which were removed by statute in less than one hundred years after the first prevalence of uses. Thus they were subjected to debts of cestui que use, against whom, if in the actual enjoyment of the profits, actions for the freehold were also allowed to be brought; he was made liable for waste, if he had not the inheritance; and finally his conveyances and leases, although without the concurrence of his trustees, were established. (2 Bl. Com. 332; 1 Spence's Eq. Jur. 461 & seq.)

These provisions all tended to consider cestui que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII, c. 10, (A. D. 1536), usually called the statute of uses, or more accurately, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of King Richard III, who, when Duke of Gloucester, having been frequently made feoffee to uses, (i. e., trustee,) would, upon the assumption of the crown, (as the law was then understood), have been entitled to hold the lands discharged of the use. To obviate so notorious an injustice, the act 1 Ric. III, c. 5, (A. D. 1483), was immediately passed, which ordained that, if he had been joint-feoffee, the land should vest in the other feoffees, as if he had never been named; and where he was sole feoffee, the land itself should vest in the cestui que use, in like manner, as he had the use. And so the statute of 27 Hen. VIII, c. 10, (A. D. 1536), after reciting the various inconveniences attending uses, (amongst which are enumerated the loss to the king and other feudal lords, of wardships, marriages and other oppressive feudal incidents, the continued insecurity to pur chasers, the defeat of curtesy and dower, and in general, "the trouble and unquietness and utter subversion of the ancient laws of the realm," which resulted from "the imaginations and subtile inventions and practices" which went under the name of uses, trusts, and confidences,) enacted that wheresoever one person, by any ways or means whatsoever, should be seised to the use of another, the possession of the person so seised should be transferred to him who has the use, in like quality, manner, form and condition as he had before in the use. (2 Bl. Com. 333; 1 Spence's Eq. Jur. 463-4.)

2a. The English Statute of Uses, 27 Hen. VIII, c. 10.

Let us observe, (1), The effect of the statute of uses, 27 Hen. VIII; (2), To what conveyances it is applicable; (3), The circumstances necessary to the operation of the statute; and (4), The modern doctrine of uses under the statute; W. C.

1o. The Effect of the Statute of Uses, 27 Hen. VIII.

The effect is to transfer the possession of him who is seised to him who has the use, for the estate which he has in the use, so that cestui que use is thenceforward seised of the land, as fully and completely as if he had been enfeoffed thereof, with livery of seisin. The statute was said thus to execute the use, by turning it into an estate in possession in the lands. (2 Bl. Com. 333.)

2o. To what Conveyances the Statute 27 Hen. VIII is Applicable.

The statute enacts, that wherever any person is seised of any lands, tenements, or hereditaments to the use, confidence or trust of any other person, by reason of any bargain, sale, feoffment, fine, recovery, covenant, agreement, will, or otherwise by any manner of means, whatsoever it be, for any estate whatsoever, the cestui que use shall be deemed in lawful seisin and possession of such lands, &c., of such like estates as he had in the use. And these words are so comprehensive as to embrace devises, although the statute of wills was not enacted until 32 Hen. VIII. (1 Spence's Eq. Jur. 463; 1 Lom. Dig. 208, 215; Gilb. Uses, 356, & n (21.)

Under this statute there are two classes of conveyances to which its provisions apply, namely: (1), Conveyances operating with actual transmutation of the possession; and (2), Conveyances operating without actual transmutation of the possession;

W. C.

1. Conveyances Operating with actual Transmutation of the posssesion.

Conveyances operating with actual transmutation of the possession are conveyances which operate at common law to transfer the estate to the trustee (e. g. feoffinent, fine, common recovery, &c.), and declare at the same time the uses and trusts to which the trustee is to be seised. Thus of this class is a feoffment, with livery, to the trustee and his heirs, in trust for, or to the use of (the form of` the phrase is immaterial), the cestui que use, where the common law operates to transfer the estate to the trustee, and the statute then passes the trustee's seisin to the cestui que use.

This class of conveyances is used in marriage-settlements, and in other instances where it is desired to create future uses, in favor of persons not in being, or not ascertained. (1 Lom. Dig. 214-'15; Gilb. Uses, 163, n (5), 398 & n (2).)

2. Conveyances operating without actual Transmutation of the Possession.

Conveyances operating without actual transmutation