elsewhere expressed the opinion that the king might, not་ withstanding the statute against subinfeudation, grant to his immediate tenant the right to alien his land to be holden of himself, and thus create a manor, where the land was not in tenure prior to the 18th Edward I. (The People v. Van Rensselaer, 5 Seld. 334.) But with the exception of the tenure arising upon royal grants, and such as might be created by the king's immediate grantees under express license from the Crown, I am of opinion that the law forbidding the creating of new tenants by means of subinfeudation was always the law of the Colony, and that it was the law of this State, as well before as after the passage of our act concerning tenures, in 1787. A contrary theory would lead to the most absurd conclusions. We should have to hold that the feudal system, during the whole colonial period and for the first ten years of the State government, existed here in a condition of vigor which had been unknown in England for more than three centuries before the first settlement of this country. We should be obliged to resolve questions arising upon early conveyances, under which many titles are still held, by the law which prevailed in England during the first two centuries after the Conquest, before the commencement of the Year Books, and long before Littleton wrote his Treatise upon Tenures.-Per Denio, J., in Van Rensselaer v. Hays (1859).

GRAY, PERPETUITIES, § 24. In those States where tenure no longer obtains, there can be no question whether the statute Quia emptores is in force; its subject-matter has ceased to exist. In this condition are at least Connecticut, New York, Maryland, Virginia, Ohio, Wisconsin, West Virginia, Kentucky (?), Minnesota, California.

§ 25. In the States where there is no reason to question the existence of tenure, there seems as little reason to question the existence of the statute Quia emptores. There is no cause why this statute should not have prevailed as generally as the statute De Donis. Denio, J., in Van Rensselaer v.

Hays, points out the absurdity of supposing that subinfeudation existed in the Colonies generally. In New Jersey the statute was in force, and has been expressly re-enacted; Mr. Dane says that the statute of Quia emptores was “never adopted here" (qu. in Massachusetts). But no authority is cited for the proposition. The alleged non-existence of the statute in North Carolina, Tennessee, Georgia, Alabama, and Mississippi rests upon the same ground as the alleged non-existence in those States of the statute De Donis, which, as we have seen, wholly fails. In Indiana, Illinois, and Michigan either there is no tenure, or if tenure exists, the statute Quia emptores exists also. There would seem to be, of the States in which tenure exists at the present day, but two in which the statute Quia emptores is not in forcePennsylvania and South Carolina.

26. Pennsylvania.-By the charter of 1681 the Crown granted to William Penn the power to grant land to be held of himself, his heirs and assigns, and not immediately of the Crown, the statute Quia emptores notwithstanding. And in Ingersoll v. Sergeant (1836), a very elaborately argued and carefully considered case, it was held that the statute Quia emptores was not in force, and that therefore rent reserved on a conveyance in fee-simple was rent service and could be apportioned. This decision has always been deemed a landmark in the law of Pennsylvania; but in Wallace v. Harmstad (1863) the court ruled that there was no tenure in the State. This ruling was unnecessary to the decision of the case, and has been far from meeting with universal acceptance. It has been severely criticised by Chief Justice Sharswood in his Law Lectures, and by Mr. Cadwalader in his treatise on Ground Rents. These criticisms seem just. If Wallace v. Harmstad had professed to overrule Ingersoll v. Sergeant, the ruling, whether right or wrong, would be plain enough. But on the contrary it is said: "That ground rent is a rent service was fundamental in Ingersoll v. Sergeant, a case which has been so often recognized and followed as to have become a rule of property."

In fact, Wallace v. Harmstad is unintelligible. To speak of rent service, or of the statute Quia emptores, in a State where tenure is non-existent, is an absurdity; rent service and the statute Quia emptores necessarily imply tenure. They are meaningless terms without it. Considering the high authority which has always attached to Ingersoll v. Sergeant, there may be reason, in spite of Wallace v. Harmstad, to believe that tenure still exists in Pennsylvania, and that the statute Quia emptores does not.

$ 27. South Carolina.-On December 12, 1712, was passed an act to put in force in the province the English statutes therein particularly mentioned, the tenth section of which declared that all the English statutes not enumerated and made of force in the province by the act were impracticable in the province. The statute Quia emptores is not mentioned in this act, and is therefore not law in South Carolina.

§ 28. The important result of this inquiry, for our present purposes, is that in all of the United States, with the exception of South Carolina and perhaps Pennsylvania, land, if held at all, can be held of none but the State; for in all the States, with the two exceptions, either there is no tenure, or, if there is tenure, the statute Quia emptores is in force.

B. EQUITABLE OWNERSHIP.

CHAPTER I.

USES.

(a) Before the Statute.

I Co. REP., 121. An use is a trust or confidence which is not issuing out of land, but as a thing collateral annexed in privity to the estate, and to the person, touching the land, scil. that cestui que use shall take the profits, and that the tertenant shall make estates according to his direction. So that he who hath an use hath not jus neque in re, neque ad rem, but only a confidence and trust, for which he hath no remedy by the common law, but his remedy was only by subpoena in Chancery. If the feoffees would not perforin the order of the Chancery, then their persons for the breach of the confidence were to be imprisoned till they did perform it; and therefore the case of an use is not like unto commons, rents, conditions, etc., which are hereditaments in judgment of law, and which cannot be taken away or discontinued by the alienation of the tertenant, or by disseisins, or by escheats, etc., as uses may, as shall after be said. There were two inventors of uses, fear and fraud; fear in times of troubles and civil wars to save their inheritances from being forfeited; and fraud to defeat due debts, lawful actions, wards, escheats, mortmains, etc.-Chudleigh's Case.

Co. LIT., 271, b. Note, uses are raised either by transmutation of the estate, as by fine, feoffment, common recoverie, &c., or out of the state of the owner of the land, by bargaine and sale by deed indented and inrolled, or by covenant upon law full consideration, whereof you may read plentifully in my Reports.

272, a. The greater part of the lands in England in those. troublesome and dangerous times (when that unhappie controversie betweene the houses of York and Lancaster was begun) were in use.

BACON, USES, TRACTS, 303. First, use is no right, title, or interest in law, and therefore master attorney who read upon this statute said well, that there are but two rights— Jus in re, Jus ad rem. The one is an estate, which is Jus in re, the other a demand, which is Jus ad rem, but a use is neither. . . . The books go farther and say that a use is nothing, as in 2 H. VII. . . . But these books are not to be taken generally or grossly, for we see in the same books, when an use is specially alleged, the law taketh knowledge of it; but the sense of it is, that use is nothing for which remedy is given by the course of the common law, so as the law knoweth it, but protects it not; and therefore when the question cometh whether it hath any being in nature and conscience the law accepteth of it; and therefore Littleton's case is good law, that he which hath but forty shillings freehold in use, shall be sworn in an inquest, for it is ruled secundum dominium naturale and not secundum dominium legitimum, nam natura dominus est, quia fructum. ex re percipit.

ID., 314. For the inception and progression of uses, I have for a precedent in them searched other laws, because states and commonwealths have common accidents; and I find in the civil law, that that which cometh nearest in name to the use, is nothing like in matter, which is usus fructus; for usus fructus and dominium is with them, as with their particular tenancy and inheritance. But that which resembleth the use most is fidei commissio, and therefore you shall find in Justinian, lib. 2, that they had a form in testaments, to give inheritance to one to the use of another, Haeredem constituo Caium, rogo autem te, Caie, ut haereditatem restituas Seio; and the text of the civilians saith, that for a great time if the heir did not, as he was required,