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 Statute of Uses, 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.