of the possession, are at common law mere agreements, operating no transfer of title or possession, but when founded on proper consideration (2. e. a valuable consideration, or a consideration of natural love and affection), were sufficient before the statute to raise a use in the beneficiary, which use the statute executes, by transferring the seisin of the bargainor or covenantor to the cestui que use, for the estate he had in the use. To this class belong conveyances by bargain and sale (founded on valuable consideration), and by covenant to stand seised (founded on consideration of natural love and affection.) (1 Lom. Dig. 214; Gilb. Uses, 187 & seq., 242 & seq.)

3. The Circumstances necessary to the operation of the Statute 27 Henry VIII.

The circumstances necessary to the operation of the Statute of Uses, 27 Hen. VIII, c. 10, are (1), A person seised to a use; (2), A cestui que use in esse; and (3), A use in esse;

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1f. A Person Seised to a Use.

This is required by the express words of the statute. All persons capable of being seised to uses before the statute, may be seised to uses under it, and none others. Hence, disseisors, abators and intruders cannot be seised. to uses, nor at common law, aliens, although it is otherwise in Virginia as to alien-friends. And as to the estate of which a person may be seised to a use, it may be any freehold, as is imported by the word seised. But if the use is greater than the estate of the person seised, it will cease upon the determination of that estate, but will be good in the mean time. In respect to the kinds of property whereof a person may be seised to a use, the statute comprehends every species of real property, corporeal and incorporeal, in possession, remainder or reversion. Nothing, however, can be conveyed to uses but that of which a person is seised, or to which he is entitled at the time. (1 Lom. Dig. 209-'10.)

It suffices, however, if at the time the estate was created, there was a seisin in any one sufficient to serve all the uses declared, whatever may have become of that seisin since; so that, in order that the statute may take effect, it is only needful to show (1), That a sufficient seisin existed at first to serve the future use; and (2), That such future use should come into being by the happening of the event upon which it is limited. Thus, if Black-acre be conveyed by feoffment to T, in fee-simple, to the use of A for life, remainder to the use of A's first and second sons unborn, for their respective lives, successively, remainder to the use

of B, in fee-simple, the estate for life is immediately executed in A, remainder to B in fee, and then, when the sons of A successively come into being, the original seisin in T is not considered as exhausted of its effect, but is deemed sufficient by relation to execute or serve the contingent uses in A's sons. (Gilb. Uses (Sugden's Ed.), 293 & seq., 297 n (10).)

2o. A Cestui que Use in esse.

Hence, if a use be limited to a person not in being, or not ascertained, the statute can have no operation until a cestui que use comes into being, or is ascertained. Any person capable of taking lands by a common law convey ance (including a corporation), may be a cestui que use; and although a man cannot at common law convey to his wife (because they are one person), yet he may covenant with another to stand seised to her use, and the statute will transfer the possession to her. In general, the terms of the statute require that the cestui que use should be a different person from him who is seised; but if the use is in a manner different from the seisin, this principle is relaxed; and hence, if one seised in fee bargains for a valuable consideration to stand seised to the use of himself for life, remainder over in fee, a new estate is by the statute vested in himself. (1 Lom. Dig. 210-'11; Ì Th. Co. Lit. 130.)

3f. A Use in Esse.

The use, whilst it must exist, may be in possession, reversion, or remainder, and may be created by express declaration, or may result to the original owner by impli cation of Law. (1 Lom. Dig. 211.)

4o. The Modern Doctrine of Uses, under the statute 27 Hen. VIII, c. 10;

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1. The words whereby Estates are limited under the statute. The same technical words of limitation are required as at common law. (1 Lom. Dig. 212; Gilb. Uses, 143, n (1); 2 Th. Co. Lit. 576, n (A).)

2. Uses Contingent and Revocable.

As the statute of uses enacted that the estate of cestui que use in the lands should be "after such quality, manner, form and condition" as he had in the use, and as before the statute, a future use might be made to arise, without any preceding estate (in which case they were denominated springing uses), and might be made to shift from one to another, by matter ex post facto (when the use was styled a shifting use); or at the pleasure of the creator, existing uses might be revoked, and new ones limited, according to the stipulations of the instrument of creation; so limita

tions under the statute, extending to the lands themselves, were allowed a similar plasticity, although, at common law, the freehold was quite incapable of being so disposed of. (1 Lom. Dig. 212-'13; 3 Th. Co. Lit. 123-'4; Id. 578 n (A); 2 Bl. Com. 334 & n (51); Gilb. Uses, 152, &c., Sugd. note (5).)

3. Resulting Uses, and Uses by Implication.

These are uses which redound to the benefit of the original owner of the estate, in consequence of not being disposed of at all, or not being validly disposed of, to any one else. The former phrase is employed in case of conveyances operating with transmutation of the possession, and the latter in the other class of conveyances which operate without transmutation of possession, namely, by bargain and sale, and by covenant to stand seised. Thus, if the owner of lands enfeoffs A and his heirs, with livery of seisin, to the use of Z for life, the use as to the inheritance results to the feoffor; and if a bargainor bargains, for valuable consideration, to stand seised to the use of the heirs of A, the use during the life of A (for nemo est hæres viventis), remains in the bargainor, and is called a use by implication. (1 Lom. Dig. 215, 217; 1 Spence's Eq.

Jur. 488.)

34. The Virginia Statute of Uses; W. C.

1o. The Terms and Effect of the Virginia Statute of Uses.

The Virginia statute of uses enacts that, "By deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seised to the use, or deed operating by way of covenant to stand seised to the use, the possession of the bargainor, releasor, or covenantor, shall be deemed transferred to the bargainee, releasee, or person entitled to the use, as perfectly as if the bargainee, releasee, or person entitled to the use, had been enfeoffed with livery of seisin of the land intended to be conveyed by such deed or covenant." (V. C. 1873, c. 112, § 14; Post c. xx.)

The effect of this enactment is to transfer the possession of him who is seised, to him who has the use, for the estate or interest which he has in the nse, as perfectly as if the cestui que use had been enfeoffed with livery of seisin of

the land.

2. The Conveyances to which the Statute is Applicable.

It is applicable to those only which operate without transmutation of possession, namely, bargain and sale, and covenant to stand seised; for although two others are also named, that is lease and release, and deed operating by way of covenant to stand seised, yet the latter manifestly does not constitute a distinct class, and the lease and release are no more than a lease by bargain and sale for a term, say a

year, and a release operating as at common law, by way of enlargement. (V. Č. 1873, c. 112, § 14; 2 Bl. Com. 139); W. C.

1. Bargain and Sale.

This is no more than a bargain (which our statute of conveyances requires should be under seal, V. C. 1873, c. 112, § 1,) whereby, for valuable consideration, the owner of the freehold agrees to stand seised to the use of the intended grantee for such estate (whether for years, for life, or in fee-simple), as may be designated. The use thereby raised in the grantee is executed by the statute, so as to vest in him the possession of the lands for the estate or interest which he had in the use. (Gilb. Uses, 187 & seq; 2 Bl. Com. 338.)

The learned author of Lomax's Digest does indeed take a very different view of the bargain and sale, regarding it as designed to operate without reference to uses, as a transfer, by the potent effect of the statute itself, of the legal title to the bargainee, (1 Lom. Dig. 220, 576; 2 Do. 184,) which construction, if the true one, would have anticipated and rendered needless the subsequent statute of grants. (V. C. 1873, c. 112, § 4.)

2o. Covenant to Stand Seised.

This differs from bargain and sale only in the consideration. Bargain and sale is for value, not necessarily money, as was formerly thought, but anything of value. Covenant to stand seised is in consideration of natural love and affection, e. g., for child, brother, nephew, cousin or wife. It consists simply of a covenant (under seal necessarily in Virginia, V. C. 1873, c. 112, § 1,) in consideration of natural love, &c., to stand seised of land to the use of the covenantee, which use the statute executes as before. (2 Bl. Com. 338; Gilb. Uses, 92 & seq, 243 &c.; 1 Lom. Dig. 200 & seq.)

3. Lease and Release.

This, as already stated, is merely a modification of the bargain and sale, the lease taking effect under the statute, and the release operating at common law, by way of enlargement. (2 Bl. Com. 339; 2 Lom. Dig. 200 & seq.) 3. The Circumstances necessary to the Operation of the Virginia Statute.

The same as in the English statute, 27 Hen. VIII, c. 10. (Ante p. 181, 3.)

4. Modern Doctrine of Uses under the Statute.

The modern doctrine of uses under the statute of uses in Virginia, is essentially the same as under the English statute, as explained, Ante p. 182, 4o.)

2o. Trusts.

Let us advert to, (1), The origin and nature of trusts; (2), The definition of a trust-estate; (3), The several modes of creating trusts; and (4), The rules whereby trust-estates are governed.

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1o. Origin and Nature of Trusts, prior to the Statute of Uses, 27 Hen. VIII, c. 10.

Trusts, it has been already stated, (Ante p. 176, 1a,) have the same origin as uses, and are of a very similar nature, although they are not, as has been sometimes said, identical. Trusts, or as Lord Bacon denominates them, special trusts, was the name originally bestowed in those cases where the person seised of the legal estate, as trustee, was charged with some discretionary power touching the subject of the confidence, so that a court of equity would not decree a conveyance to cestui que trust, as it would in case of a use. Thus, when the confidence was to sell for the payment of debts and legacies, to pay the profits to a feme covert, to make repairs, and the like, it being necessary that the estate and control should continue in the person seised, so as to enable him to accomplish the objects designed, the transaction was known as a trust. The principles and doctrines applicable to them were in general the same as in the case of uses. (2 Th. Co. Lit. 593, n (C); 1 Spence's Eq. Jur. 446, 448, 466; 1 Prest. Est. 144; 1 Steph. Com. 343.) 2d. Definition of a Trust-estate.

A right in equity to take the rents and profits of lands, whereof the legal estate is vested in some other person, called the trustee; and to compel such trustee (subject to the discretion which may be vested in him) to execute such conveyances of the land as the person entitled to the profits, who is called the cestui que trust, shall direct; the cestui que trust when in possession, being considered, in a court of law, to be tenant at will to the trustee. (1 Lom. Dig. 223.) 34. The several modes of creating Trusts.

Trusts are either, (1), Direct, being in part uses, unexecuted by the statute of uses; or (2), Indirect, being such as a court of equity derives from the apparent intention of the parties, or from the nature of the transaction;

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1. Direct Trusts.

These are uses, which for various reasons, or without reason, have been held to be not executed by the statute of uses; and which, therefore, are still cognizable in equity only, as trusts. (1 Lom. Dig. 223; 2 Th. Co. Lit. 593, n (C).)

The intent of the statute 27 Hen. VIII was undoubtedly to do away wholly with the separation between the legal