B. UNDER MODERN STATUTES. I. Voluntary Alienation. CHAPTER I. . UNDER THE STATUTE OF USES. DIGBY, HIST. REAL PROP., Ch. VII., § 2. The Statute of Uses at once produced important effects upon the old modes of conveying the legal estate in lands. It has been already seen what were the appropriate modes of conveying freehold estates at common law. If the freehold was to pass immediately from the grantor to the grantee, feoffment with livery of seisin was the only appropriate mode. In practice the same result was accomplished by the fictitious processes of fines and recoveries. It has also been seen under what circumstances the Chancellor would before the Statute have held that the party taking by the common law conveyance would hold to the use, not of himself, but of the grantee or some other person. Wherever, with certain exceptions to be hereafter noticed,' such a construction would before the Statute have been put upon the conveyance by the Chancellor wherever a use would have been raised in favor of some person other than the feoffee or grantee at common law, by reason either of an express declaration of the use, or of circumstances from which the intention of raising the use would necessarily have been inferred, in all such cases after the Statute the legal state passed to the person in whose favor the use was declared or implied. * * * * * The distinction made in the text-books between the rais'Active trusts, trusts of leasehold interests, and uses upon uses. See page 165, supra. ing of a use by a conveyance operating by transmutation of possession, and raising a use without transmutation of possession, has already been noticed. In the former case a mode of conveyance is employed sufficient at common law to take the estate out of the donor and to vest it in the donee. To this conveyance is superadded, either by express words or by necessary implication, the obligation upon the donee to hold to the use of the donor or of some third person, or of the donor together with some third person Uses are raised without transmutation of possession when the legal owner of lands binds himself to hold the lands for the use of some other person. It has already been seen that the usual mode of effecting this before the Statute was by bargain and sale, or covenant to stand seised. In these cases the use, which before the Statute was raised in favor of the covenantee or bargainee, is now executed by the Statute, and thus these two assurances take their places as modes of conveying the legal interest in lands. Thus A. covenants to stand seised for B. his eldest son and his heirs, or in consideration of £100 bargains and sells his lands to C. and his heirs. B. and C. by force of the Statute take an estate in fee simple in precisely the same way as if that estate had been conveyed to them respectively by feoffment at common law. LEAKE, LAND LAW, 108. Upon principles of equity any agreement, supported by a valuable consideration, to the effect that an estate or interest in land should be conveyed, as it might be specifically enforced in the Court of Chancery, was held to entitle the purchaser to the use or beneficial ownership according to the terms and intent of the agreement, without any legal conveyance; and accordingly the vendor was held to be or stand seised to the use of the purchaser. Such transaction, as creating a use executed by the statute, became technically known as a bargain and sale. An agreement unsupported by a valid consideration, or a mere declaration of use without transfer of possession, was altogether void of effect in raising a use within the statute by reason of the principle that equity will not enforce gratuitous, or, as they are called, voluntary agreements. And, in general, no distinction was admitted in equity in this respect by reason of the agreement or declaration being made in the form of a covenant or by deed under seal; although in law such formality supplied the force of a consideration. But the value or amount of the consideration paid was immaterial; the existence or expression of it was sufficient to denote that the transaction was intended by way of bargain and not as a mere voluntary agreement; and if not a voluntary agreement, it was effectual to raise a use by way of bargain and sale. An exception to the general rule of equity not to enforce voluntary agreements was made in the case of a covenant or declaration by deed executed by the person seised to stand seised to the use of his wife, child, or some blood relation. The motive then stood in place of a consideration, and it was said to be made upon a good consideration, as distinguished from a consideration of money or value, which formed the characteristic of a bargain and sale. A covenant to stand seised to uses was thus a recognized mode of raising uses in family settlements. DIGBY, HIST. REAL PROP., Ch. VII., § 2. One of the immediate effects of the Statute was, as has been seen, to give legal validity and effect to "bargains and sales." These transactions required no particular ceremony, no open or notorious act, such as livery of seisin; and thus one of the great objects of the Statute, the prevention of secret conveyances, would have been eluded. This was at once perceived by the legislature, and in the same year a second Act was passed intended to prevent the mischief of secret bargains and sales by providing for their enrolment in one of the superior courts or before the custos rotulorum of the county in which the lands were situate. STAT. 27 HEN. VIII. (1535), c. 16. Statute of Enrolments. Be it enacted by the authority of this present parliament, that from the last day of July, which shall be in the year of our Lord God 1536, no manors, lands, tenements, or other hereditaments, shall pass, alter, or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing, indented, sealed, and enrolled in one of the King's Courts of Record at Westminster, or else within the same county or counties where the same manors, lands, or tenements so bargained and sold lie or be, before the Custos Rotulorum and two Justices of the Peace, and the Clerk of the Peace of the same county or counties, or two of them at the least, whereof the Clerk of the Peace to be one; and the same enrolment to be had and made within six months next after the date of the same writings indented. And that the Clerk of the Peace for the time being, within every such county, shall sufficiently enrol and engross in parchment the same deeds or writings indented as is aforesaid, and the rolls thereof at the end of every year shall deliver unto the said Custos Rotulorum of the same county for the time being, there to remain in the custody of the said Custos Rotulorum for the time being, amongst other records of every of the same counties where any such enrolment shall be so made, to the intent that every party that hath to do therewith may resort and see the effect and tenor of every such writing so enrolled. DIGBY, HIST. REAL PROP., Ch. VII., § 3. An examination of the language of the Statute [of Enrolments] shows that its provisions only extend to prevent any estate of inheritance or freehold being created without the observance of the prescribed forms. The Statute therefore did not extend to the creation of a term of years to arise by way of bargain and sale out of an estate of freehold. If A., tenant in fee simple, bargained and sold his lands to B. for ten years, there was no necessity for any enrolment, or even for any writing to evidence the transaction. The Statute of Uses at once operated upon the bargain and sale; one person, the bargainor, was seised to the use of another, the bargainee, and there was no necessity for enrolment, inasmuch as the bargain and sale did not purport to create an estate of inheritance or freehold. After a time an ingenious conveyancer bethought him of availing himself of a bargain and sale as a secret mode of conveying freehold interests in lands, thus avoiding the necessity of any livery of seisin or of enrolment. It was after some doubt at length held by the Court of Wards1 that a bargain and sale for a term of years gave to the lessee by force of the words of the Statute of Uses "possession" of his term as if he had actually entered on the land, at all events for the purpose of being capable of taking by a simple deed a release of the reversion. Thus if A., tenant in fee simple, bargained and sold the manor of Dale to B. for a year, and the day after executed a release of the reversion in fee to B. and his heirs, he would by the bargain and sale have immediately vested in him an estate for a year in possession. He would thereupon become capable of taking a release, and so soon as the release was executed, the smaller estate and In the 18th of James I., Lutwidge v. Mitton, Croke's Reports, James, 604. "Where one by indenture, in consideration of money, bargaineth and selleth, demiseth and granteth land for years, and the next day after, by indenture reciting that grant and demise, grants the reversion to divers uses, the lessee attorns, it is a good grant of the reversion, although there were not any proof that the bargainee entered before this grant of the reversion, or that the bargainor waived the possession; for the lessee shall be adjudged in actual possession by the statute of 27 Hen. 8, c. 16, of uses, and the reversion is immediately divided from the possession, and he hath a good reversion; but in case of a lease for years at the common law, until the lessee enters, or the lessor waive the possession, the reversion is not divided, nor passeth by the words of 'grant of a reversion."-Per Curiam in Iseham v. Morrice, 3 Cro. Car. (1629), 110. |