Uses and the Statute University Press Scholarship Online Oxford Scholarship Online A History of the Land Law A. W. B. Simpson Print publication date: 1986 Print ISBN-13: 9780198255376 Published to Oxford Scholarship Online: March 2012 DOI: 10.1093/acprof:oso/9780198255376.001.0001 Uses and the Statute A. W. B. Simpson DOI:10.1093/acprof:oso/9780198255376.003.0008 Abstract and Keywords The conception of a use of lands differs little from that of a bailment of a chattel, and both transactions were actuated by much the same sort of motives. The medieval lawyers were incapable of devising suitable remedies when the same sort of transaction was carried out not with chattels but with land, nor did they find it easy to prevent such transactions being used for fraudulent purposes. In the Middle Ages it was the Chancellor who supplied the first defect and the legislature the second. Keywords: statute, bailment, chattel, transactions, Chancellor, legislature THE conception of a use of lands differs little from that of a bailment of a chattel, and both transactions will be actuated by much the same sort of motives. I may hand over a book to a friend because I feel that it is safer in his custody, or because I am going abroad and cannot take it with me, or indeed for a multitude of honest and understandable reasons. I Page 1 of 28 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses and the Statute may also do so for dishonourable or fraudulent reasons—to keep a valuable book out of the hand of my creditors. Furthermore, I may hand over a book to a friend with some instructions requiring him to do something more positive with it—to read it to my small son at bedtime. In the course of time the law has evolved a number of remedies which protect me against sharp practice in such situations when I bail a chattel, and these remedies are common law remedies, though they have to some extent been supplemented by the intervention of equity. Unfortunately the medieval lawyers were incapable of devising suitable remedies when the same sort of transaction was carried out not with chattels but with land, nor did they find it easy to prevent such transactions being used for fraudulent purposes. In the Middle Ages it was the Chancellor who supplied the first defect and the legislature the second. We meet with examples of uses of land back in Domesday Book;1 by the time we reach the thirteenth century the practice of putting lands in use has become fairly common. The essence of such a transaction is that lands are conveyed to a person or persons (called the feoffee or feoffees to uses) with a provision that they be held for the benefit (ad opus) of a beneficiary. The beneficiary is described in law french as ‘cestui a que use le feoffment fuit fait’, and from this obtains his curious title ‘cestui que use’. The plural of this term is often rendered charmingly (p.174) as ‘cestui que usent’, an expression calculated to give a grammarian bad dreams. The beneficial enjoyment of the land is therefore separated from the legal title, for the feoffee is a mere passive recipient of title, often with no active duties to perform, who is not intended to benefit from the transaction in any way. His basic duty is the passive one of allowing the cestui que use to take the profits of the land; from this comes the other title sometimes given to the beneficiary —‘the pernor of profits’. Sometimes the feoffee might have active duties imposed upon him—for example he might be instructed to reconvey the lands to another person; such a direction would create an active use. But passive uses were more commonly met with, and in the development of the law of uses they played a much more important part. The Medieval Use A variety of explanations have been given for the prevalence of feoffments to uses in the Middle Ages. The Crusades, it has been suggested, encouraged the practice by taking landowners out of the country and making it imperative that they left somebody at home in control of their lands. The friars of the Order of St. Francis found it convenient that property should be held by others to their use. Thereby they could, as St. Francis had enjoined, achieve both individual and corporate poverty. Like horses, which used but did not own their stables, the friars used, but did not own, the buildings they occupied.2 Their resulting complete poverty was thought to imitate the poverty of Christ. Dishonesty also played some part.3 One who was proposing to indulge in treasonable enterprises could seek to avoid the chance of his lands being forfeit to the Crown for treason by conveying them away to a blameless confederate, to be held to his use. By the fifteenth century it becomes clear that most uses were created for one of four main reasons: they could be (p.175) employed to assist in simple fraud; they could be used to avoid feudal dues; they could be used to gain a power of devise over land; and they could be used to facilitate the creation of settlements of land. But before these reasons can be explained Page 2 of 28 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses and the Statute we must first see how the Chancellor came to protect the use and develop a body of equitable principles around the institution. The use simply could not be fitted into the common-law scheme of things,4 for the doctrine of estates and the doctrine of seisin left no place for the separation of beneficial enjoyment from legal title. The simplest form of use would arise when A enfeoffed B of Blackacre to the use of C. By the feoffment the legal estate vested in B, upon whom the seisin had been conferred by the livery of seisin. Until seisin had passed to C he could not possibly obtain any estate in the land, and if of course B did make a conveyance and pass the seisin to C, then B would step out of the picture completely, which was hardly A's intention. If B let C into possession without any formal conveyance then the only legal category into which C could be fitted was that of tenant at will of B, and this meant that C could be thrown out by B whenever B wished. The root of the common law's difficulty lay in the fact that the landowner's beneficial interest was protected by protecting seisin; the person who had seisin could recover that seisin specifically in the real actions if he were disseised, or disturbed in some other way. The cestui que use did not have seisin, and thus he could not use the actions which gave specific recovery, nor were there forms of action capable of protecting a beneficial interest divorced from seisin. It has been suggested that the common law could have protected the cestui que use by allowing him other actions—trespass and assumpsit for example—and it must be admitted that the same development which enabled trespass to be used to protect the termor might conceivably have been copied in relation to the cestui que use. But if the cestui que use was never let into possession by a dishonest feoffee, he could never have used trespass, which only protected one who had possession, and the employment (p.176) of assumpsit in this connection would have required a very considerable degree of modification of the rules governing that action; for example, specific recovery would have had to have been introduced in it. We may well understand therefore, the helplessness of the common-lawyers in the matter, for they were bound to work within the scheme of actions provided by the Register of Writs.5 The intervention of the legislature was confined to the introduction of measures directed towards the prevention of fraudulent feoffments to uses. There is evidence of the enforcement of uses in the ecclesiastical courts, but, so far as the later history is concerned, the important forum was the Chancery, for it was to the Chancellor that petitions for the protection of uses were directed.6 Since it was settled in the fifteenth century (and recognized earlier) that the common-law courts would not uphold uses as such, the person who made a feoffment to uses was clearly reposing a trust or confidence in the feoffee, which it was unconscionable, though not illegal, for him to break. Thus it was the very impotence of the common law which provided the basis upon which the Chancellor could intervene in the name of good conscience and, later, equity, and require the feoffee to hold the land for the benefit of the cestui que use and allow him to take the profits.