Tyrrel's Case (1557) and the Use upon a Use

N.G. JONES

Jane Tyrrel's Case (1557)1 is commonly taken as the starting point for a discussion of the trust in the form of a use upon a use, to which the invalidity and therefore non-execution of the second use was essential. Essential, that is, if there were trusts created in this form which would have been executed had it not been for the double use. To the extent that active trusts were created in this form for secrecy or out of caution the substantive importance of the double use may have been limited.2 But it is suggested that two elements of the case should be reassessed: the supposed accidental nature of the conveyance, and the meaning of the rule that a use upon a use is void. It has been to our loss that Maitland, liking most centuries better than the sixteenth, never considered TyrreVs Case in detail.3 'The legal historian has not only to visualise the dispute, but to feel some sympathy for both sides.'4 Such sympathy came naturally to Maitland, but it has played no great part in modern discussion of TyrreVs Case: t h e 'ignorant conveyancers' and 'careless attorneys' who limited a second use upon the use implied in a bargain and sale have become familiar figures.5 And the mistake theory has spread to infect trusts themselves, the Chancellor being envisaged as stepping in to protect people from their own folly.6 But, as the facts of Bertie v. Herenden (1560) show, far from being foolish, people were capable of putting a double use to work for their own ends.7 A view of the early history of the trust in the form of a use upon a use which depends upon the making of mistakes is likely to be in large part false. A consideration of the background to TyrreVs Case will increase our doubts. And if the mistake theory is abandoned, the true issues in TyrreVs Downloaded by [University of Cambridge] at 12:15 19 January 2015 Case demand consideration in the light of the expectation that the con- veyance would work. If the court did not merely point out the obvious, how was the prevailing view altered, and what does it mean that there cannot be a use upon a use?

N.G. Jones, Wm. Senior Research Student, Clare College, Cambridge Legal History, Vol. 14, No.2 (1993), pp.75-93 PUBLISHED BY FRANK CASS, LONDON 76 LEGAL HISTORY

THE BACKGROUND Jane Tyrrel was the daughter and heir of Robert Ingleton of Thornton in Buckinghamshire. Humphrey Tyrrel, her first husband, was the second son of William Tyrrel of Ockenden in Essex, a direct descendant of the killer of William Rufus.8 Jane and Humphrey were not happily married. A covenant of 1526 to allow Jane to live as a feme sole was followed by reconciliation and a further covenant in January 1530/31, but peace was short-lived: their disputes were often before the Chancellor and in 1540 a divorce was ordered a mensa et thoro.9 Party to the covenant of 1526, ordered to be adhered to in 1540, was one Edward Mountague, who by 1540 was Sir Edward Mountague, Chief Justice of the King's Bench. One of the most highly respected judges of the time,10 his connection with the Tyrrel family seems to have been close and was destined to become closer. Humphrey Tyrrel died in January 1548/49,11 and on 17 May 1550 Jane made the conveyance upon which the subsequent litigation turned. Two parcels of land were conveyed to Jane's son George, by bargain and sale enrolled, for a consideration of 400 marks provided by George.12 The terms of the conveyance differed for the two parcels. The first was to the said George and his heirs to the use of the said Jane during her life without impeachment of waste, and immediately after the decease of the said Jane Tyrrel to the use of the said George Tyrrel and the heirs of the body of the said George lawfully begotten and for lack of such issue to the use of the heirs of the said Jane for ever.13 The second was as above, with the addition of a use in favour of Jane's executors for a period of ten years immediately following her death. It was intended that the second uses should be executed. That this had happened was believed, not only by a supposed 'ignorant conveyancer', but also by those who drew up Jane Tyrrel's inquisitions post mortem, 14 Downloaded by [University of Cambridge] at 12:15 19 January 2015 and seemingly by Sir Edward Mountague himself. The inquisitions post mortem recite that by virtue of the bargain and sale and of the , Jane was seised in her demesne as of freehold for term of her life, with remainders over. So being seised, she married one Alexander St John and the two of them were then seised in the right of Jane with remainders over. Sir Edward Mountague's relationship with the family was tightened by the marriage of George Tyrrel to Sir Edward's daughter Helen. In accordance with a covenant with Sir Edward, a fine was levied of the land by Jane, Alexander and George in Hilary term 1550/51 to resettle TYRREL'S CASE 77 it upon Jane for life with remainder to George and Helen and the heirs of their two bodies. The participation of Jane and Alexander in the levying of the fine would seem to indicate at least a doubt as to whether George had the entire interest in the land. Jane Tyrrel died in April 1557.15 The Buckinghamshire inquisition post mortem was taken on 29 June, that in Oxfordshire on 1 October. Both inquisitions assume that the conveyance to George had worked as planned. Judgment in Tyrrel's Case w a s delivered in Michaelmas term of the same year.16 The conveyance was held not to have worked as planned: George had the entire interest, his mother and her executors had nothing at law. The judgment was not easy. It was not merely a matter of pointing out that a bargain and sale operated by the raising of a use and that an elementary error had been made. The Tyrrels were unlikely to fall victim to the negligence of a 'careless attorney': the land conveyed lay in six counties and George Tyrrel, son-in-law of the chief justice, became father to a future sheriff and member of parliament.17 Jane Tyrrel's role in the litigation is not certain, it may well be that her death sparked it off,18 but it is clear from the reports that the matter was doubtful and difficult: not for a simple case would advice have been sought not only of the two chief justices, but of the puisne justices of the Common Pleas as well. The justices of the Common Pleas were no doubt familiar with the points in issue: Dyer tells us that 'this case has been doubted in the Common Pleas before now'. It is well known that the end of the doubt has been expressed as the rule that there cannot be a use upon a use. This intelligible rule became 'arid dogma'19 and the thinking behind it has been obscured. But the obscurity has not been complete, and suggestions in the right direction may now be supported by evidence from manuscript reports. The thinking behind the dogma is explicable, and the decision in Tyrrel's Case can be understood in the light of the expectation that the conveyance would work.

THE CASE Downloaded by [University of Cambridge] at 12:15 19 January 2015 A conveyance by bargain and sale is understood to take effect by the execution of an implied use. In addition to its function in raising this implied use, the consideration required at law for the operation of a bargain and sale may play an independent role, a role which it could equally play in a conveyance for value operating by transmutation of possession.20 The role of the consideration in raising the implied use, and in thus giving rise to the possibility of a use upon a use, and the possibility of an inde- pendent role for the consideration must be assessed separately. 78 LEGAL HISTORY

THE EXISTENCE OF TWO USES The apparent conflict between the existence of two uses and the deliberate nature of the conveyance might most easily be resolved by asserting that it was decided for the first time in Tyrrel's Case that a use upon a use was void. And indeed it has been said that the point was still doubtful in the previous year. In Milborn v. Ferrers (1556)21 a father, seised of a manor, made a feoffment with his eldest son, to the use of himself, to the use of a younger son for life upon condition that the eldest son be permitted to make leases, remainder to the use of the father, 'and afterwards the father alone made a lease of the manor for term of twenty one years'. Was this lease good? It has been thought that the doubt turned upon the question of whether the second use, in favour of the younger son, had been executed.22 But the report is not informative and this need not be regarded as the only possible explanation. Assuming that it was clear that the second use was void and so unexecuted, there might nevertheless have been doubt. Was it obvious that the second use alone should be ignored leaving that expressed in favour of the father intact? Or should both uses fall? In many cases either alternative would lead to the same result, since if the use expressed in favour of the father fell, the same result would be obtained as if it had stood, by virtue of the being seised to a resulting use in his favour. But this case was different. The initial conveyance was by father and eldest son jointly, and the question would now arise of a resulting use in favour of them both. Whether both uses fell, or only that in favour of the younger son, would determine the validity of the lease. That a resulting use in favour of the father and the eldest son jointly may have been in question would give point to the report that it was the father 'alone' who made the lease. The doubt may thus be accounted for without the necessity of assuming that the invalidity of the second use was unclear. Such an explanation of Milborn v. Ferrers seems to sit more easily with

Downloaded by [University of Cambridge] at 12:15 19 January 2015 Dyer's report of Tyrrel's Case than does an explanation turning upon doubt as to the validity of the second use. Judges who assert that 'a use cannot be springing, drawn or reserved out of a use, as appears prima facie' do not sound like judges who in the previous year had doubted the validity of a second use. But whatever the meaning of Milborn v. Ferrers, such arguments may be beside the point. Tyrrel's Case concerned an express use limited upon an implied use in a bargain and sale, while Milborn v. Ferrers concerned two express uses. If, as is suggested, the principles applicable to the two situations are different, then Milborn v. Ferrers m a y be of no direct application to Tyrrel's Case. TYRREL'S CASE 79 The difficulty in Tyrrel's Case was, it seems, not over the validity of a second use, but over the existence of a second use in the first place. At the centre of the problem was the Statute of Enrolments,23 the relevance of which was pointed out by Plucknett24 and appears from Dyer's report: 'suppose the Statute of Enrolments had never been made, but only the Statute of Uses, then the above case could not be'. It had been thought that the Statute of Enrolments gave a bargain and sale the same effect as a conveyance by transmutation of possession, or rather, that a bargain and sale took effect by force of the Statute of Enrolments and not by the execution of a use. The Statute of Enrolments had been regarded as having a positive effect, and not merely the negative effect of rendering invalid unenrolled bargains and sales. Such a suggestion is consonant with the view that the Statute of Enrolments was intended, not to prevent secret conveyances by rendering them invalid as unenrolled, but to ensure that indentures meant as deeds of covenants did not take effect as conveyances.23 Until enrolled, the deed of bargain and sale had no force as a conveyance. Once enrolled, it did. It was thus easy to imagine that the efficacy of the conveyance derived not from a use and its execu- tion by the Statute of Uses but from the Statute of Enrolments. It was in this sense that 'some people were under the impression that bargains and sales were now equivalent (for some purposes) to a feoffment'.26 Upon this view, there was no question of there being a use upon a use in Tyrrel's Case. But the court asserted that despite the Statute of Enrolments, no transfer of legal could take place by bargain and sale enrolled unless there was a use raised and executed: 'there ought to be first a use transferred to the vendee before any freehold or inheritance in the land can be vested in him by the enrolment'.27 We seem here to see traces of the old idea: freehold or inheritance is spoken of as being vested by the enrolment. But it is made clear that there must first be a use raised: as judges would later say 'by deed of bargain and sale nothing passes except only a use'.28 The court must examine the uses within the con- veyance, decide upon those which are valid, and then apply the Statute

Downloaded by [University of Cambridge] at 12:15 19 January 2015 of Uses. Tyrrel's Case made it clear that there were two uses. The second use was invalid and therefore the first alone was executed. We may thus understand why the existence of two uses was not antici- pated as a flaw in the conveyance, despite the clarity with which the judges asserted that a use could not be 'springing drawn or reserved' out of a use. But the basis of the rule that there cannot be a use upon a use is still unclear. In defending Tyrrel's Case a g a i n s t those 'not sufficiently learned to have lost [their] common sense', Ames argued that the rule that the second use was void pre-dated the Statute of Uses, but did not fully explore the meaning of the rule, beyond suggesting that it depended upon 80 LEGAL HISTORY a repugnancy between the two uses.29 It is suggested that an exploration of the meaning of the rule leads to the conclusion that it is not one rule but two, or one rule having two elements, one depending upon the idea of repugnancy and the other upon the need for a sufficient foundation upon which to limit a use. It is suggested that it was the second of these elements which was involved in Tyrrel's Case, a n d that at least part of the reason for the invalidity of the second use was that it lacked foundation. The Foundation Principle At the centre of the argument for this principle is the suggestion that Digby was too hasty in condemning Dyer's assertion that 'a use cannot be engendered of a use' as 'no doubt a natural and intelligible proposition to Saunders, Chief Justice'.30 The statement was not the result of a common-lawyer allowing metaphors to rule his thinking,31 but rather a meaningful explanation for the court's decision, albeit somewhat shortly expressed. Dyer simply meant that one use cannot come out of another use but only out of a full title consisting of two elements, the possession and the use. These two elements had been separated by the bargain and sale to produce a use in George Tyrrel, while the possession remained in Jane. Such a use, standing alone, could not act as a foundation for a further use since a use must, in modern terms, be founded upon a full legal and beneficial title from which no use has yet been separated. Once such a separation has occurred, the use so separated cannot act as the foundation for a further use expressed in the conveyance. Such a suggestion as to foundation was made by Percy Bordwell: [e]ach beneficial estate draws in turn its support from the trust estate and not from the preceding beneficial interest. This was what was meant by the enigmatic phrase that 'a use cannot be ingendered of an use'.32 More recently, R. A . Pearce has said that: 'since a use was predicated upon the division of the legal and equitable title, it was not possible to create 33 Downloaded by [University of Cambridge] at 12:15 19 January 2015 a use out of the purely equitable interest of the beneficiary'. Pearce argues that this was a Chancery rule which the common law courts adopted at a time when the second use was 'of no effect in equity'. But it is not clear that the second use was ever 'of no effect in equity' in the sense that it was regarded as void,34 and that it had never been enforced as a trust when Tyrrel's Case was decided does not mean that it was of no effect. Those who obtained legal title subject to a use were not allowed to keep the land beneficially, even if the use was not to be enforced as a trust. Thus in 1552 the Chancery concluded that a bargain and sale of 1539 to a group of bargainees, who had paid for the land with the money of TYRREL'S CASE 81 John Stokesley, Bishop of London, 'was only meant purposed and intended to be to the use of the said bishop and his heirs for that the same was purchased with the proper money of the said late bishop'. The bishop having died before declaring the uses to which the land was to be held, there was no possibility of the enforcement of a trust, but the bargainees were not to have the land beneficially and a conveyance was ordered to the bishop's heir.35 The common law courts had had much experience of uses since the statute 1 Richard III c. 1; they did not appear upon the scene only in 1536. Indeed, their contribution to the crystallisation of rules about uses may have been as important as that of the Chancery.36 Thus the appearance of the double use rule before 1536 does not necessarily indicate a Chancery origin. It is more likely that the common law courts developed the rule themselves.37 In support of the foundation principle we may begin with the Chancery case of Saham v. Warner, decided during the chancellorship of Sir Thomas Wriothesley.38 The point of interest to the present discussion is that, a fine having been levied, the executor of a previous owner purported to bargain and sell the land to a third party. One of the reasons given for the invalidity of the bargain and sale was that 'by the fine levied the use of the said lands was suspended and could not therefore pass by the said bargain'. This may seem a convoluted way of pointing out that the previous owner had no title to pass, but it reflects the idea that a given piece of land has a use, which is almost a thing, an idea which Digby traced to the realist doctrines of the schoolmen.39 This thing, the use, is distinct from the possession, and while at a given time the two may be entirely conjoined, the use may be suspended and so put out of action, temporarily at least, for the purposes of further conveyances.40 Such a separation of use from possession does not occur in all situations where a use is said to exist. In some such situations use and possession remain conjoined in the hands of the feoffees to uses. This is true of charitable uses, where there is no cestuique use in whom a use separated from the possession can vest. It is true also of active uses. As Brooke

Downloaded by [University of Cambridge] at 12:15 19 January 2015 said, if a man makes a feoffment in fee to his use for term of life, and that after his death ... the feoffees shall take the profits and deliver them to J.N., that does not make a use in J.N. for he does not have [the profits] except by the hands of the feoffees.41 J.N. does not have a use separated from the possession; the two elements of title remain conjoined in the hands of the feoffees. But there is a use here in the distinct sense that the feoffees are obliged to exercise their rights in the land for the benefit of J.N. 82 LEGAL HISTORY It seems likely that the Statute of Uses was thought of as applicable, not to this second type of use, but only to situations where the two elements of title, use and possession, had been separated. Walmesley J. seems to have taken such a view of the statute when he 'noted well 40 Regime1 that 'if a man look to the working of the Statute he would think' that the traditional reference to the statute in pleadings as the statute de usibus in possessionem transferendis 'should be turned the other way de possessioni- bus ad usus transferendis; for that is the course that the Statute holds, to bring possession to the use'.42 So also in 1585 or 1586 it was said in the Common Pleas that the nature of a bargain and sale 'is to take effect by way of use in the bargain, and afterwards the Statute [of Uses] draws the possession to the use'.43 The 'scope and intention' of the Statute of Uses, as Bacon explained, was 'by carrying the possession to the use to turn the use into a possession', which indicates a reconciliation of the traditional phrase with Walmesley J. 's point. The intention and ultimate result of the statute was to transfer, or, as Kingsmill J. put it, to transubstantiate, the use into possession.44 But the working of the statute, as Walmesley J. said, was to transfer the possession to the use and thus to rejoin the two elements of title which had become separated. This concept of a use as a use separated from the possession is seen in reports of common law cases which consider the use upon a use. In a manuscript note, cast in the form of an abstract statement of law, the situation is considered of a man who bargains and sells land to J.S. and his heirs, with proviso that if the bargainor pays a given sum of money within a given time then the land shall be to the use of the bargainor and his heirs.45 It is said that the proviso must fail since it would be 'to derive a use out of a use which cannot be'. There is then considered a contrasting case of a covenant between A and B, in consideration of marriage, that A will stand seised to certain uses but that if A pays money then all who shall be seised of the land shall stand seised to the uses of A's will. This proviso is considered good to alter the use. The difference between the

Downloaded by [University of Cambridge] at 12:15 19 January 2015 two cases is said to be that in the case of the covenant he who covenants is seised of the land out of which the use is derived, so there is a foundation for the use and thus it is not a use on [a] use, but in the case of bargain the use is on [a] use because nothing passes except [a] use. A similar point is made in Comberford v. Bracebridge ( 1 5 6 4 - 1 5 6 6 ) , of which there is a report in the same manuscript volume.46 Bracebridge was seised of land in fee and enfeoffed certain persons to hold to their own use, upon condition that they would pay him certain money within TYRREL'S CASE 83 a certain time, and that if they failed to pay they would be seised of the land to the use of Bracebridge and his wife for life with remainder to his son in tail with remainders over. The money was not paid. Various further conveyances led to the question of the validity of the remainder to the son. Serjeant Bendlowes argued that the remainder was void since there was a use upon a use: a first use in favour of the feoffees and then, when the condition was not fulfilled, a second use in favour of the feoff or and his wife for life with remainder to the son. Browne J., with whom Weston J. agreed, thought otherwise. Bendlowes' argument would stand if the conveyance had been by bargain and sale since 'one use cannot be created on another use'. This was said to stand to reason because 'by deed of bargain and sale nothing passes except only a use and such [a] use cannot sustain another use to be derived out of it'. But the present case was different because, by the feoffment and livery of the land itself passes, which is a thing of substance out of which several conditions or several uses may be derived and created each after the other at the will of the feoff or because the land always remains which can well suffer such several conditions or uses, but of [a] bargain and sale where nothing passes except the use only it is different. The same thinking is behind the assertion in a report of an action for dower by George Tyrrel's second wife, Margery, against his son by his first marriage, that 'by the bargain enrolled no possession of the land passes, but a bare use, and therefore to raise a use out of a use cannot be, as I believe, [for] a use ought to be raised out of a substantial possession'.47 The basis of these arguments is that a use must have a foundation, and that foundation must be 'a thing of substance' and not another use. A use cannot come 'out of a use' but only out of a conjoined use and possession. And 'one use cannot be created on another use' but only on the foundation of a full legal and beneficial title. Thus there is a distinction between a situation where A is seised in fee and limits a use to B and then a further

Downloaded by [University of Cambridge] at 12:15 19 January 2015 use, relying upon B's use, in favour of C, and a situation where A, seised in fee, limits a use in favour of B and then a use in favour of C which depends not upon B's use but upon the 'land itself in the hands of A. The effect of a bargain and sale is to separate the use from the possession: 'the bargain for money in itself implies a use'. A second use based upon that use has no foundation: 'a use cannot be engendered of a use'. That 'uses cannot depend on one another, but must each in turn derive their validity from the seisin upon which they are mounted'48 was precisely Dyer's point. 84 LEGAL HISTORY The Repugnancy Principle The second element of the rule that a use upon a use is void is the repugnancy principle, the operation of which at law was contrasted with 'the course of the Chancery' in the report of Bertie v. Herenden, 'in that a use may be averred upon a fine, feoffment or recovery, against a use expressed in the same feoffment or set out in the indenture which expressly leads the use to the other'.49 The Chancery was prepared to allow an averment of the second express use, but at law two contrary uses could not be expressed of the same land at the same time.50 There are two basic forms of conveyance to be considered: to A and his heirs to the use of B and his heirs to the use of C and his heirs, and to X and his heirs to the use of X and his heirs to the use of Y and his heirs. The principles behind the two formulae are not the same. The first formula combines both the foundation principle and the repugnancy principle. B is in by the execution of a use, which use, being separated from the possession, will n o t provide a foundation for the second use, and two contrary uses have been expressed of the same land at the same time. The second formula has given rise to doubt as to whether X is in by the common law or by the Statute of Uses. Lord St Leonards took the view that X was in by the statute, since, if he was not, the second use was not a use upon a use and should therefore be executed.51 This argument was necessitated by a failure to apply the repugnancy principle. Once it is recognised that the second use is void as repugnant to the first, it becomes unnecessary to explain the non-execution of the second use by the strained argument that X is in by the statute. The course of the Chancery differed from that of the common law in Bertie v. Herenden precisely because, unlike the common law, the Chancery would permit the second use to be averred despite the first use expressed in favour of another. Thus in a limitation to X and his heirs to the use of X and his heirs to the use of Y and his heirs the foundation principle has no role, and the second use is void solely because two contrary uses cannot be expressed of the same land at the same time. Downloaded by [University of Cambridge] at 12:15 19 January 2015

THE CONSIDERATION The consideration played a role in raising the use upon the execution of which the bargain and sale depended. To what extent did it play a second and independent role? Relying upon Anderson's report, J. L. Barton has suggested that because a bargain and sale is a conveyance for value 'any use in favour of the bargainor which may be reserved upon it is repugnant to the consideration, and will therefore be rejected'.52 As Barton points out, this rule is restricted to uses in favour of the bargainor. The foundation TYRREL'S CASE 85 rule is much wider and applies to any use limited upon a bargain and sale. But it is suggested that Barton may state the consideration rule too widely, in that it is not clear that any use in favour of the bargainor would have been regarded as void as repugnant to the consideration, and that the facts of Tyrrel's Case may thus have fallen outside the scope of the consideration rule. The conveyance in Tyrrel's Case was expected to work. The presence of the consideration was plain, the old view of the Statute of Enrolments would not mask it. Upon this basis it appears that at the date of the conveyance, and seemingly at least until the decision in Tyrrel's Case, the consideration in its independent role was not regarded as a flaw in the conveyance. Why was this so, and did the decision in Tyrrel's Case establish a new consideration rule? It is suggested that the answer to the first question may lie in the distinction between getting something for nothing and getting something for something. Laying aside the lack of foundation, the fact that the bargainee has given consideration is no bar at law to a use in favour of a third party. The implication that the bargainee should have the land himself, generated by the giving of the consideration, is overridden by an express use in favour of a third party. Thus the reporter of Margery Tyrrel's dower action, taking the example of a feoffment, which avoids the foundation problem, says that although on a feoffment upon consideration the shall be presumed seised to his own use, nevertheless without doubt an express use shall control the implied use and shall cause the feoffee who gave his money for the land to stand seised to the use of the person to whom the use expressed in the deed is limited.53 But where there is a use limited in favour of the bargainor, the essential question is not whether the express use overrides the implication in favour of the bargainee, but whether the bargainor will have something for nothing if the express use is allowed to stand.

Downloaded by [University of Cambridge] at 12:15 19 January 2015 The bargainor is in a special position as the one person who may have both the use and the consideration. As Brooke put it, 'a man cannot sell land to J.S. to the use of the vendor, nor lease land to him rendering rent to have to the use of the lessor, because that is contrary to law and reason, for he had recompense for it'.54 The essence of the rule is that the vendor has had recompense and therefore cannot also have the use, to hold otherwise would be 'contrary to law and reason'. Was this true of Tyrrel's Case! It is suggested that it was not. The consideration rule stated by Brooke applies where the limitation of the use can be regarded as contrary to reason because of the recompense. 86 LEGAL HISTORY This would clearly be true of a limitation of the use such that, were the use to be allowed to stand, the bargainor would have the same interest in the land as he had to begin with. But it is much less clear that Jane Tyrrel would have had something for nothing had the second use been valid. She began with a fee tail general.55 If the use had been valid, she would have ended up with a life estate and 400 marks. Can it be said to be 'con- trary to law and reason' that she should have a life estate and recompense, given that she has lost the fee tail? To assert that the limitation of the use was contrary to reason because of the recompense would require an investigation of the value of that which Jane had lost. But the courts seem to have been unwilling to undertake such an exercise. In Wilkes v. Leuson (1559)56 the Court of Wards considered a feoff- ment made in 1558 from Wilkes to Leuson and two others. The conveyance was peculiar in that the expressed consideration of £7,000 was not paid, and in that it was expressed to be to the feoffees and their heirs for ever, to the use and behoof of the feoffees for ever, rather than to the feoffees and their heirs for ever, to the use and behoof of the feoffees and their heirs for ever. There arose the question of whether the feoffees should have a ' in the use, because the use is not expressed, except only "to themselves (by their names) for ever"'. The solution reached was that effect would be given to the intentions of the feoff or as expressed in the deed. The feoffees would have the use for their lives only, and 'it may be that the use, during their three lives, is worth seven thousand pounds, and more'. This case differs from Tyrrel's Case in that there is no express use in favour of the grantor, but in deciding upon the extent of the interest in the grantees the court was not prepared to investigate the value of the interest for which they had paid. The mere fact that they had given money, or rather that they were taken to have done so, was not sufficient to give them the fee simple in the use. What they had might be worth what they had given for it and the court would not investigate further. Thus, grants for rent apart, there was only one situation where an express use in favour

Downloaded by [University of Cambridge] at 12:15 19 January 2015 of the grantor would be regarded as contrary to reason because of the consideration: the case where the use so limited was for an estate the same as that with which the grantor had begun. In no other case could the court be certain, without further investigation, that the grantor would have something for nothing if the use was valid. Such further investigation it was not prepared to carry out, and so in all such cases the limitation was regarded as valid. Cases where rent was reserved were different. No matter the scope of the use limited in favour of the grantor or lessor, he would have, during the period of the estate limited in use, both the use and the rent referable to that period, and so would clearly have something for TYRREL'S CASE 87 nothing if the use was valid. Therefore any use in favour of a grantor or lessor who reserved rent was void because of the consideration constituted by the rent. In Tyrrel's Case, the interest which George had in the land might be worth what he had paid for it; it could not certainly be said that Jane would have something for nothing if the use in her favour was valid. Therefore the second use was not regarded as invalid on account of the consideration in itself. This is a basis upon which it is possible to explain why, before Tyrrel's Case, the consideration in itself was not regarded as a flaw in the conveyance. Given that the conveyance was expected to work, such an explanation, which incorporates the rule expressed by Brooke without including the facts of Jane Tyrrel's conveyance, is essential. But there remains the question of whether Tyrrel's Case expanded the scope of Brooke's rule to include all uses in favour of the grantor limited upon conveyances for value. The expectation that the conveyance would work is clearly of no relevance to this question, while a new rule that all uses in favour of the grantor limited upon conveyances for value are invalid would still enable the court to avoid investigating the value of the interests granted. The possibility that such an approach was adopted in Tyrrel's Case might seem to derive support from the reports of the case by Anderson and Benloe, and from the Chancery's attitude to uses upon bargains and sales. But an analysis of the evidence provides no strong support for a change in the consideration rule as a result of Tyrrel's Case. While it is not emphasised in Dyer's report, the consideration seems to play a more prominent part in the reports of Anderson and Benloe. Finding Dyer's reason for the invalidity of the second use unenlightening, Ames sought explanation in Anderson's statement that 'the bargain for money in itself implies a use, and the limitation of the other use is absolutely contrary'.57 But Anderson's formula is no more helpful than Dyer's, and only superficially different. The phrase 'the bargain for money' might just as well have been 'the bargain and sale'. If the alteration is made, we learn

Downloaded by [University of Cambridge] at 12:15 19 January 2015 that the bargain and sale implies a use to which the other use is contrary: a use upon a use is void. Moreover, Anderson's report is based upon an implied use which is generated by the bargain for money, and thus looks at the situation in terms of the position of the bargainee. But the considera- tion rule expressed by Brooke is concerned with the bargainor, who cannot have both the use and recompense. The rule is not that the bargainee, having paid money, must have the use, but that the bargainor, having been paid money, cannot have the use as well. Anderson is not making this point. He is emphasising the use in the bargainee, which, having been separated from the possession, cannot be foundation for the second use. 88 LEGAL HISTORY The fact that the bargainee has paid money is, in itself, of no moment: an express use will override an implication in favour of the bargainee. The difficulty which Anderson addresses is that the money has separated the use from the possession and has thus deprived the second use of its foundation. The bargainor is the one person who may have both use and consideration, and such a conjunction may defeat him. That is the consideration rule. But Anderson's report does not go to that conjunction: it goes to the implied use, and thus to the foundation theory. The same argument applies to Benloe's assertion that 'this limitation of uses or use is void in the said indenture, and shall be to the use of the vendee in fee because the said consideration and the sale imply a use to be in him only in fee'. The consideration in its independent role does not imply a use to be in the bargainee 'only in fee'. In such a role the con- sideration merely generates an implication that the bargainee should have the land, which implication will be overridden by an express use. But in acting to separate the first use from the possession the consideration can be regarded as implying 'a use to be in him only in fee'. In so putting the case Benloe points out that the bargain and sale had given George a use in fee, upon which it had been attempted to limit a second and distinct use. As Anderson says, 'the use in fee ... is in the bargainee in fee only'. This is not, in other words, a case where there are two people each having an estate in one and the same use: Jane for life and George in remainder. That it was possible to think in such terms is shown by the discussion of an estate for term of lives in a use in Wilkes v. Leuson.5* The bargain and sale has given George a use in fee, a use which is separated from the possession. And because of the consequent lack of foundation, the expressing of another use will not change the situation. The separation of use and possession is peculiar to bargains and sales, it does not occur in a feoffment for consideration. It may therefore be significant that, while making assertions going beyond the facts in Tyrrel's Case, both Anderson and Benloe confine their discussion to bargains and sales. It is suggested that the restriction to bargains and sales is a matter

Downloaded by [University of Cambridge] at 12:15 19 January 2015 of substance rather than of chance. Thus the reports of Anderson and Benloe do not support the suggestion that Tyrrel's Case widened the consideration rule to include all uses in favour of the bargainor limited upon a conveyance for value. They are concerned rather with the function of the consideration in separating the use from the possession and are thus, like Dyer, reporting the foundation principle as applied to Tyrrel's Case. The attitude of the Chancery to uses upon bargains and sales appears from a case, or two very similar cases, appearing in Cary59 and in Crompton's Courts.60 The printed report in Crompton is confusing in referring both to a 'bargain' of land and to a 'feoffment', but three TYRREL'S CASE 89 manuscript versions clearly refer to a bargain and sale. It is said that in Chancery a man who bargained and sold land to another for £40 to the use of the bargainor 'could not be helped against the tenor of the deed which doth carry a consideration in itself. Cary adds that 'such considera- tion in an indenture of bargain and sale seemeth not to be examinable, unless fraud be objected because it is an estoppel'. Here the consideration seems to play an independent role. As Barton has argued, from the case of Holloway v. Pollard (1605), the Chancery could contemplate a bargain and sale without consideration.61 Thus it seems that if the man who had bargained and sold his land for £40 could have denied the consideration, the court could have aided him by enforcing the use in his favour as a trust. But since he could not deny the considera- tion the use could not be enforced. It could not be enforced, not because the Chancery regarded it as void, but because the Chancery would not enforce it against the consideration expressed in the deed. Reasons for non-execution of a use cannot necessarily be derived from reasons for not enforcing that use as a trust. The use in this case is not executed because it lacks foundation. Such non-execution is a pre-requisite for the enforce- ment of the use as a trust, but it is not enforced as a trust because of the consideration expressed in the deed, and the two questions are distinct. Thus, in discussing Tyrrel's Case, William Sheppard recites the facts and concludes: 'in which case, by law, the fee-simple is in the son presently, and the use for life to the mother void'. Having established the invalidity of the second use, without mentioning consideration, he considers the possibility of Chancery enforcement of the use and concludes that, as it seems, there is no relief in equity 'because of the consideration paid'.62 In this light it is curious to find three manuscript reports of the case in Crompton which all contain a reference to Dyer's report of Tyrrel's Case, and that while two of them follow the printed version, one of them states the use to have been in favour of the bargainor for life.63 The references to Dyer's report might be taken to show that the Chancery regarded the consideration as the basis for the decision in Tyrrel's Case, and that the

Downloaded by [University of Cambridge] at 12:15 19 January 2015 consideration did there play an independent role, despite the use in favour of Jane having been for life only. But Dyer's report does not emphasise the consideration and the meaning of the reference is unclear. It may be by way of analogy only: the result is the same in the two cases although the basis of it is different. Perhaps too much should not be made of the one manuscript report which refers to a limitation of the use to the bargainor for life, but the common law and the Chancery need not have adopted the same considera- tion rule. The Chancery may have refused to enforce as a trust any use in favour of one who had received consideration, while the common law 90 LEGAL HISTORY regarded only certain uses so limited as void. Indeed the Chancery seems for long to have taken the view that no use limited upon a bargain and sale for value could be enforced as a trust, whether the use was in favour of the recipient of the consideration or not.64 In this sense the common law consideration rule may have been narrower than the Chancery rule, but, in the case of a bargain and sale, the common law would reach in effect the same result as the Chancery by application of the foundation principle. In a case of 1532 in Brooke's Abridgement it is said that 'where a man sells his land for £20 by indenture, and executes an estate to his own use; this is a void limitation of the use; for the law, by the consideration of money, makes the land to be in the vendee'.65 The phrase 'an estate to his own use' would seem to comprehend several possible estates and perhaps the Common Pleas, speaking before the Statute of Uses, is here considering the question of the enforcement of the use as a trust, with the conclusion that because of the consideration in itself, no use in favour of the bargainor can be so enforced. But again, the consideration in itself does not strictly make the land to be in the vendee, it merely prevents it being in the vendor. Thus it may be that here Brooke is setting out the foundation theory and that the court was concerned with the initial validity of the use rather than with its enforcement as a trust. Given the statute of 1 Richard III such a question would not be out of place even before the Statute of Uses. Upon either hypothesis the result is the same, but the reasoning is not. The lack of a record of the case and of more fully informative reports makes it difficult to be certain. But, as with the reports of Anderson and Benloe, the case in Cary and Crompton does not provide strong evidence that the consideration played an independent role in Tyrrel's Case. It is possible that Tyrrel's Case did widen the consideration rule at law to cover all uses in favour of the grantor limited upon a conveyance for value, but there is no proof of such a change and the evidence is consistent with the view that Tyrrel's Case turned solely upon the foundation principle. If that is true, then had Jane Tyrrel conveyed the land by feoffment with livery of seisin the conveyance would have worked as planned, despite

Downloaded by [University of Cambridge] at 12:15 19 January 2015 George Tyrrel's 400 marks.

CONCLUSION The conveyance in Tyrrel's Case was not an accident, but the product of a view of the effect of the Statute of Enrolments which the case overturned. The rule that a use upon a use is void was based upon two principles: the need for a foundation for the second use, and the repugnancy of two express uses. It was upon the first of these principles that Jane Tyrrel's conveyance foundered. The fact that the conveyance was expected to TYRREL'S CASE 91 work, combined with the rule expressed by Brooke, leads to the suggestion that before Tyrrel's Case a use was regarded as void as repugnant to the consideration only where the recipient of the consideration would clearly have something for nothing were the use to be regarded as valid. Upon this basis the consideration in its independent role was not relevant on the facts before the decision in Tyrrel's Case, and it cannot be shown that the decision made any change to the consideration principle. The famous 'unto and to the use o f formula, being based upon the repugnancy principle, did not trace its ancestry to Tyrrel's Case. And the case to which the rule that a use upon a use is void has so often been traced was concerned, not with the validity of the second use, but with whether it ex- isted in the first place.

NOTES 1. Dyer 155a; Benloe 28; 1 Anderson 37; Benloe with Dalison 61; briefly reported in Cambridge University Library (CUL) MS. Gg.2.5, fo. 19, pl. 190. Quotations from manuscript sources in English have been rendered into modern spelling. Those from sources in French have been translated. Unless otherwise indicated, all documents cited are in the Public Record Office. I am grateful to Professor J. H. Baker for commenting upon previous versions of this article. 2. For secrecy see Bertie v. Herenden (1560), discussed in J.H. Baker, 'The use upon a use in equity 1558-1625' (1977) 93 Law Quarterly Review 3 3 . There are strong grounds for believing the second use in this case to have been active. For caution see J . L. Barton, 'The Statute of Uses and the trust of freehold' (1966) 82 L.Q.R. 215 at 221, and S. F . C. Milsom, Historical Foundations of the Common Law, 2nd edn, London, 1981, 2 3 8 . 2. Letter to J . H . Round, 29 Dec. 1898, C . H . S . Fifoot, ed., The Letters of Frederic William Maitland, London, 1965, No. 233. For a passing comment on the case see F.W. Maitland, Equity, 2nd edn by John Brunyate, Cambridge, 1936, 4 1 . 4. S.F.C. Milsom, 'F.W. Maitland' (1982 for 1980) 66 Proceedings of the British Academy, 265 at 271. 5. A.W.B. Simpson, A History of the Land Law, 2nd edn, Oxford, 1986, 201; T.F.T. Plucknett, A Concise History of the Common Law, 5th edn, London, 1956, 599. 6. For a summary of the received view see Baker, 93 L.Q.R. 33.

Downloaded by [University of Cambridge] at 12:15 19 January 2015 7. Baker, 93 L.Q.R. 33. 8. For biographical detail and pedigrees see: Victoria County History, Buckinghamshire, Vol. 4, 245 and 271; P . Morant, The History and Antiquities of the County of Essex, Vol. 1, London, 1763, republished E.P. Publishing, 1978, 100; J . H . Tyrrell, A Genea- logical History of the Tyrrells, Twickenham, 1904, 123 - 4 ; Bodleian Library MS. ENG. MISC. C. 17, ff. 92v-93, transcribed in W. H. Rylands, ed., Publications of the Harleian Society, Vol. 58, London, 1909, 117; W . Berry, County Genealogies Pedigrees of Essex, London, 1840, 57-9. 9. Chancery and Supreme Court of Judicature, Chancery Division: Six Clerks' Office and successors: Decree Rolls (C 78): C 78/2/75. Jane was later in dispute with her second husband: Early Chancery Proceedings (C 1): C 1/1381/15, C 1/1381/16. 10. J. H. Baker, The Reports of Sir John Spelman, Vol. 2, Selden Society Vol. 94, London, 1978, 56. 92 LEGAL HISTORY

11. Chancery Inquisitions Post Mortem Series II Henry VII - Charles II (C 142): C 142/88/56. 12. It is clear that the consideration was in marks, and not in pounds as the reports have it. 13. Chancery Close Rolls (C 54): C 54/464/37 (enrolled deed of bargain and sale, on dorse of the roll), also recited in C 142/112/137(1). 14. C 142/107/2 (Buckinghamshire); C 142/112/137(1) (Oxfordshire). 15. In C142/107/2 the date is given as 24 A p r i l while in C142/112/137(1) it is given as 25 A p r i l . 16. There is no record of the case: the Wards Entry Books of Decrees do not begin until 1572. The relevant Entry Book of Orders, Miscellaneous Books (WARD 9): WARD 9/516, reveals no information directly helpful. 17. Edward Tyrrel, sheriff of Buckinghamshire, 1595-96 and 1612-13, MP for the borough of Buckingham, 1604. It was said that Jane had a marriage portion of 30 manors: Berry, 58. 18. The timing of Jane's death and of the litigation is in itself suggestive. Moreover, in the margins of both inquisitions post mortem is a note recording the sending of a transcript to the Court of Wards. This is not to be explained on the ground that the heir was a minor since George Tyrrel was at least 26 at the time. 19. J. Williams, Principles of the Law of , 24th edn by R. A. Eastwood, London, 1926, 59. 20. In Chancery it was possible for there to be a bargain and sale without consideration: Barton, 221-2. 21. Dyer 114b. 22. Barton, 215. 23. 27 Henry VIII, c. 16 (1536). 24. Plucknett, Concise History, 5th edn, London, 1956, 600. 25. J. M. Kaye, 'A note on the Statute of Enrolments, 1536' (1988) 104 L.Q.R. 617. 26. Plucknett, 600. 27. Dyer 155. 28. Comberford v. Bracebridge (1564-66), British Library (BL) MS. Harley 1699, fo. 81 v (translated); CUL MS. Ff.5.4, fo. 40v. 29. Ames, 21 Harvard Law Review 261, at 270-71. 30. K.E. Digby, An Introduction to the History of the Law of Real Property, 5th edn, Oxford, 1897, 371. See also A. W . B . Simpson, A History of the Land Law, 2nd edn, Oxford, 1986, 202 n. 68. 31. Simpson, 202 n. 68. 32. P. Bordwell, 'The conversion of the use into a legal interest' (1935) 21 Iowa Law Review 1. 33. R. A. Pearce, 'Is the Statute of Uses dead?' (1990)41 Northern Ireland Legal Quarterly 43 at 52. 34. Barton, 218. 35. Parker v. Spendlove (1552), C 78/7/7; C 54/419/55 (enrolled deed of bargain and sale, on dorse of roll). 36. Milsom, Historical Foundations, 2 1 6 . 37. Cf. Ames, 270. It may be that Pearce relies upon the discussion in R. Megarry and Downloaded by [University of Cambridge] at 12:15 19 January 2015 H. W. R. Wade, The Law of Real Property, 5 t h edn, London, 1984, 1172-1174, which does not fully incorporate Bertie v. Herenden (1560), where a second use was enforced in Chancery, by an order to re-convey, only three years after Tyrrel's Case. 38. C 78/3/48 (1544-47); printed in E.G. Henderson, 'Legal rights to land in the early Chancery', (1982) 26 American Journal of Legal History 97 at 118. 39. Digby, 370. 40. For the idea of the two elements see E.N. D[urfee], 'The Statute of Uses and active trusts' (1918) 17 Michigan Law Review 87 and see also D. E. C. Yale, 'The revival of equitable estates in the seventeenth century: an explanation by Lord Nottingham' [1957] Cambridge Law Journal 72 at 83. Parsons attributed 'a division of the estate at law into two independent parts, the seisin and the use' to the statute 1 Ric. III, c. 1, [J. Parsons], 'A use upon a use' (1864) 17 Law Magazine and Review (n.s.) 18, reprinted in J. Parsons, A Series of Essays on Legal Topics, Philadelphia, 1876, 9 4 - 1 0 8 . TYRREL'S CASE 93

41. Brooke's Abridgement, Feffements al Uses, pl. 52. 42. Bacon's reading on the Statute of Uses, in The Works of Francis Bacon, edited by J. Spedding, R.L. Ellis and D.D. Heath, London, 1859, Vol. VII, 417. On the phrase used in pleadings see Baker, Spelman's Reports, 202 n. 4, and Bordwell, 23. 43. Sir Thomas Holland and Bonis's Case (Mich. 29 Eliz) 3 Leonard 175 at 176. 44. Baker, Spelman's Reports, 202 n. 5, quoting Bacon's reading. 45. CUL MS. Ff.5.4, fo. 46 (translated). The undated note is in an Elizabethan collection. One Walmesley is reported as speaking. Thomas Walmesley was created serjeant in 1580 and was J.C.P. 1589-1612. 46. BL MS. Harley 1699, fo. 81v (translated); CUL MS. Ff.5.4, fo. 40v. 47. BL MS. Add. 25211, fo. 49 (1573). I am grateful to Professor J. H. Baker for showing me a transcript of this report. 48. Yale, 76. 49. See Baker, 93 L.Q.R. 33 at 35 and 36-7. 50. Cf. Sir Francis Bacon, Maxims of the Law, published in The Elements of the Common Laws of England, London, 1630, 15: 'So if I let white acre, blacke acre, and greene acre to I.S. excepting white acre, [t]his exception is void, because it is repugnant'. 51. E.B. Sugden, Lord St Leonards, A Practical Treatise of Powers, 8th edn, London, 1861, 141-3. The argument is criticised in Parsons, 'A use upon a use' (1864) 17 Law Magazine and Review (n.s.) 18. And see generally, Simpson, 203-6. 52. Barton, 216. 53. BL MS. Add. 25211, fo. 49v (translated). 54. Brooke's Abridgement, Feffements al Uses, pl. 54. 55. This appears from the report of Margery Tyrrel's action, BL MS. Add. 25211, fo. 49. 56. Dyer, 169a. 57. Ames, 271. 58. Dyer, 169a. 59. Anon., Cary 14; BL MS. Hargrave 281 fo. 32; BL MS. Stowe 296 fo. 46v; CUL MS. Gg.2.31 fo. 179. 60. R. Crompton, L'Authoritie et Iurisdiction des Courts de la Maiestie de la Royne, London, 1594, fo. 54; BL MS. Hargrave 227, fo. 61v; BL MS. Harley 736, fo. 227v; CUL MS. Mm.6.64, fo. 49. 61. Barton, 219-220. 62. W. Sheppard, The Faithful Councellor: or the Marrow of the Law in English, 1651, ch. 59, s. 7. 63. BL MS. Hargrave 227 fo. 61v. 64. Ames, 273-4. The authorities discussed all consider bargains and sales because the presence of the bargain and sale prevented the execution of the express use and so left open the question of enforcement as a trust. 65. Feffements al Uses, pl. 40. (Ames's translation). Downloaded by [University of Cambridge] at 12:15 19 January 2015