Kentucky Law Journal Volume 24 | Issue 2 Article 4 1936 An Introduction to the Statute of Uses Wendell Carnahan University of Louisville Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Common Law Commons, and the Property Law and Real Estate Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Carnahan, Wendell (1936) "An Introduction to the Statute of Uses," Kentucky Law Journal: Vol. 24 : Iss. 2 , Article 4. Available at: https://uknowledge.uky.edu/klj/vol24/iss2/4 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. AN INTRODUCTION TO THE STATUTE OF USES* By WENDma CARNAHANt USES BEFORE THE STATUTE OF USES The origin of the use is unknown. The Roman law had a device somewhat analogous to the use in the fidei commssum and the German law in the treuhand or salmon' but this received no recognition in England until the first development of Trusts shortly before the Statute of Uses. It was not until about the time of the Statute Quia Emptores2 that freedom of alienation of real estate was generally recognized in England3 and in spite of the theory of that statute that the transferee of the land was to stand in the position of his transferor in relation to the feudal overlord, the latter was not protected as fully as the feudak law had formerly provided. During the middle ages the Church exercised a high position politically and morally and there were a great number of conveyances of land to Church purposes. In- asmuch as the Church was a perpetual organization there was no likelihood of the land reverting to the Crown. Consequently, to curb this practice, were passed various statutes of mortmain 4 prohibiting the conveyance of lands to the Church. This prohibition was undoubtedly a strong factor in the development of a mode of transfer to avoid the statutes, but other factors must be considered. It will be remembered that upon a number of reasons the feudal overlords could take over real estate, either permanently * This article presupposes that the student is familiar with the early property law of tenures, possessory estates and non-possessory estates before considering the problems of uses. The purpose of the article is to present in elementary form the common aspects of uses with a brief contact with future interests which occasion difficulty to those beginning the study of real property. t Ph. B., J. D. Asst. Professor of Law, University of Louisville. Member of Chicago, Illinois, and American Bar Associations. I See Bogert, Trusts, Sec. 2. 218 Edw. I, c. 1. 3 (1290). 3 See Plucknett, Concise History of the Common Law, 327-332, for discussion of development of alienability of lands. 4Magna Carta, Sec. 43 (1217), contained a provision against con- veyance in mortmain; conveyances in mortmain by way of use were abolished by 15 Rich. II, c. 5 (1391). INTRODUCTION TO STATUTE OF USES or for a limited period of time. Among these were forfeiture for conviction of felony, violation of various feudal incidents, and wardship where the ancestor left a minor heir. These circum- stances furnished additional inducement for a new type of transfer of ownership of land. For example, A, owning Black- acre, was likely to die leaving a minor son as his heir with the consequence that during the minority the lord would take pos- session of the land and its proceeds. If A could transfer the land to his friend B with the understanding that B would hold it until the son reached 21, giving to the son the rents and profits during his minority, then the interests of A and the son would be protected from the encroachments of the feudal over- lord. Or if A wished to provide against the possibivity of for- feiture or escheat, he could convey with the understanding that B would allow A to live on the land during his lifetime and on his death convey to named persons. This device of conveying to another person became very popular and during the develop- ment of the plan a great portion of the land in England was held in this form of tenure. There were certain difficulties with this procedure in its early stages. For example, since B was legal owner, it would follow that his wife was dowable; since B was the legal owner, neither A nor the son of A would have an action to compel B to perform the promise given to A. To remedy these defects Chancery soon took jurisdiction to compel the performance of his promise by the grantee, B (called the feoffee to uses), in favor of his promisee (called the cestui que use). It was but a short step thereafter to hold that the wife of the grantee was not dowable and that the land was not subject to execution by his creditors. The practice of Equity was to treat B as the legal owner and to exert coercion to compel his performance. The effect of this attitude of Chancery in compelling performance of the undertaking by the holder of the land, analogous to our modern idea of the enforceability of trusts, fostered the practice of conveying to uses and led to the development of many new reasons for such conveyance. For example, at this time land was not divisable although chattel interests were subject to be- quests. Suppose that A desired to give the property to C at the death of A; A could convey to B to hold to the use of A (analo- gous to an equitable life estate, since B held the legal title) and Km-TucxKy LAW Jou=AL upon- the death of A for B to convey the property to C or to such other person as A might name in his last will. The will itself would be inoperative to convey the title but with Chancery enforcing the intended purpose of A and B, through personal coercion of B, then C would secure the benefit of the property as effectually as though the power to devise by will existed in A. Numerous other purposes for such conveyance to uses are not hard to imagine, and the enforcement by Equity led to the idea that title to property consisted of two distinct sorts of things: first, the seisin or legal title; and second, the use or equitable title, i. e., a title enforceable in equity. Hence one person could have the seisin and another person the use and for practical purposes the use was the main thing. EQUITABLE PRESUIAPTION REGARDING RESULTING USES So common did this practice become that Equity developed several prima facie presumptions concerning the use upon the transfer of seisin or legal title. There were three principal cases in which a conveyance was made without a declaration by the transferor as to where the use should go in which Equity laid down presumptions. The first typical case was one in which A simply conveyed the fee to B and his heirs without anything.further being said. Now if B had paid for the land it could be supposed that the payment was for the two portions of the title, that is, the (legal) seisin and the (equitable) use. But if B had paid no consideration then there were two possi- bilities; either A had given the land to B, or A had simply transferred it to B to hold for A and his heirs, that is, to B in fee to the use of A in fee. Equity prombtly declared, based upon the commohness of such type of proceeding, that where the use was not declared and no consideration was paid to raise a presumption of a use in B in fee, that the parties must have intended A to have the use in fee. In other words, the pre- sumption was raised that the use resulted to A. As a corollary to this, suppose that A conveyed the fee to B to the use of B in fee; here the express declaration of the use rebutted the presumption and showed an intention to create an executed gift. Suppose that A conveyed the fee to B in con- sideration of £50 to the use of B for life. Here there was the presence of consideration and also the fact of a declaration of INTRODUCTION TO STATUTE OF1 USES the use. Several presumptions were possible but Equity took a reasonable view which was that the consideration should apply only to the declared use, i. e., the life estate in B, and not to the fee simple estate and, consequently, A would take a resulting use in fee subject to the express life estate in B. The considera- tion was referred only to the declared use. A second case occurred when A paid X for a tract of land and, instead of having the conveyance of title made to A, title was transferred by X to B. When B was not related to A, one cannot readily imagine why A would pay for land conveyed to a stranger. Equity said that the only explanation was that there was some sort of an agreement between A and B that B should hold for A; that is, again, B held the seisin for the use of A in fee. The technical conclusion as before was that there was a resulting use to A in fee.