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first use, therefore, exhausts the beneficial ownership of the estate and leaves nothing over for the limitation of a second


His lordship's confident assertion that a use could have been limited upon a use previously to the statute of 27 Hen. VIII., is likewise contradicted by the opinion of Chief Justice Baldwin in Bokenham's case (Dyer, 28 Hen. VIII. 11, et seq.) which arose before, but was decided subsequently to the statute. The feoffee in this case, who was seized to the use of Bokenham and his heirs, made a feoffment to the use of Bokenham and his wife, and his heirs. Baldwin, C.J., considered the second use to Bokenham's heirs inconsistent with the first, and hence superfluous and void, and he quaintly gives the following excellent reason for his opinion,-" A doner l'use a cestui que ceo aver derant, n'est bon. Car est common ground que home ne poit doner a moy un chose que jeo ay already: car ceo serra impertinent." And the Chief Justice gives an illustration which proves that there might as easily be two several fees simple in the same land as two several uses in the same estate. "Sicome tenant in taile enfeoffe le doner, ceo n'est discontinuance, entant que il ne poit doner a luy fee simple, le quel ne fuit unque hors de luy." Fitzherbert and Shelley, Justices, who decided the case, far from denying that cestui que use who already had the right to the entire profits to the land could not be benefited by a superrogatory right to the same profits, held that there was a preliminary and additional reason why there could not be a double use in the cestui que use. There would then, according to them, be also a double seisin in fee of the same land, but "est un imponvenience et impossibility en lee que 11 (two) homes several merit avera several droits et fee simples in un meme terre gimul et gemel." To prevent such an anomaly they held that the feoffment of the feoffee to use was a total destruction of the primary uses.

His lordship's inference therefore, that a common law use is no obstruction to the execution of a superadded statutory

use, is involved in the destruction of his position. For if the judges in their construction of the statute held that the first use exhausted the beneficial interest and left nothing over for the second use, they based their decision upon the character of a use, and their knowledge of its character was derived from the common law. It was therefore immaterial whether the first use was at common law or statutory; in either event it absorbed the entire beneficial interest, and a second use was necessarily void.

The law upon this point being thus clear and emphatic, the position taken by Mr. Sanders is vindicated, that a use is void after the limitation of a use, though the cestui que use be in by common law. This position, however, has been vehemently and persistently contested by Lord St. Leonards, though it is submitted without shaking its solid foundation. The arguments which his lordship employed are the same as those which were vainly urged by counsel in Doe d. Lloyd v. Passingham (6 Barn. & Cress. 305). This will account for the striking aptness of the judges' replies to his several points. The case is well stated in the margin, as follows: "When an estate was limited to A., to the use of A. in trust for B. Held that A. took the legal estate, and that although he took it by the common law, and not by force of the statute of uses, yet the second use could not be executed by force of the statute." In spite of this decision, when the point was directly before the court for adjudication, his lordship slurs over the well considered opinions of the judges and goes on to re-assert his own opinion thus: "If the party out of whose estate the use is to arise do take the legal estate at the common law,' he is not a cestui que use; and if the first use is not a use within the statute,' then it is not a use at all; and therefore the use over must be executed by the statute where it is said that the fine or conveyance is a common law conveyance by which both the legal estate and the use pass to the conusee without any declaration of uses, it is meant that the whole beneficial interest passes, and the instrument amounts to

a limitation of the estate, and not a limitation of the use properly so called. Where no use is declared to any other person than the releasee or conusee, it is not an use divested from the estate, as where it is limited to a stranger, but the use and estate go together. In truth, if the supposed use which A. takes, is not a use under the statute, it is simply void." This assertion is well answered by Mr. Justice Bayley, as follows: "Now ever since I have belonged to the profession of law, I have invariably understood that a use cannot be limited upon a use. This is admitted to be so in general,

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but a distinction has been taken where the limitation is to A. to the use of A. in trust for B., and it said that then A. is in by the common law. This is true; but he is in of the estate clothed with the use, which is not extinguished but remains in him. In the case of Meredith v. Jones, cited in the argument to show that when an estate is limited to A. to the use of A. he is in by the common law, it is said, for it is not an use divided from the estate, as where it is limited to a stranger but the use and the estate go together.' That case, therefore, shows that although the trustees in this case might be in by the common law, yet they were in both of the estate and the use. Here are two cases expressly in point-Lady Whetstone v. Bury is a very clear case, and the words used are precisely those found in the deed in question, and it was there decided, and also in the Attorney-General v. Scott, which came before Lord Talbot, one of the greatest real property lawyers that ever filled the office of Lord Chancellor, that the legal estate vests in him to whom by the words of the instrument the use is limited. Upon the authority of these two cases I am of opinion that the use of the estate in question was executed in the trustees," i.e., A. Mr. Justice Holroyd also, after admitting that he was struck with the ingenuity of the distinction when it was originally made by Mr. Taunton, proceeds to say that upon further consideration the argument was insufficient to warrant it, which he explains as follows; "The argument is, that as the trustees did not in the first instance take to the use of

another, but of themselves, they were in by the common law and not by the statute; that the first use was, therefore, of no effect, and the case was to be considered as if the deed had merely contained the second limitation to uses. But that was not so, for although it be true that the trustees take the seisin by the common law and not by the statute, yet they take that seisin to the use of themselves and not to the use of another, in which case alone the use is executed by the statute. They are, therefore, seized in trust for another, and the legal estate remains in them."

Lord St. Leonards second argument is, that whether A. takes by the common law or by the statute is a question of intention. He thus elaborates the point: "It may be conceded, that upon a conveyance to A., and his heirs, to the use of him and his heirs, A. would take in the course of possession by the common law, but that admission does not affect the question; for in the the case put, the conusee,' as Pratt, C.J., observed, did not want the help of the statute, and therefore it meddles not with him, but leaves him in at the common law. No case as ever been decided in which, under a conveyance to A. and his heirs to the use of A., and his heirs, to the use of B., and his heirs, A. has been held to be in at the common law. It is true that in such a case A. takes the legal estate, but that is in favour of the intention, and he must necessarily take it under the statute. The limitation unto and to the use has received a settled construction, which is not suffered to be disturbed by a subsequent limitation of the use from which a different intention might be inferred. But where a further use is declared, A. must necessarily take under the statute in order to prevent the statute from executing the use limited over. Where no use is limited over to a third person, the estate vests at the common law, and the aid of the statute is not required. The limitation of the use therefore is not called into action." This point is certainly a triumph of ingenuity. However flatfooted a case may be against his lordship, it can be explained away by this process. Thus, in the illustration given of a

limitation to A. to the use of A. to the use of B., which is the very case of Lady Whetstone v. Bury (2 P. Wms. 146), although it is admitted that A. takes the estate and that the limitation over to B. is void, yet it is insisted upon nevertheless that A. takes by force of the statute. The intention is manifest, as his lordship truly says, that the use should be executed in A. ; but there are stronger reasons than the intention to give the estate to A.:-First, the character of a use which invests the first cestui que use with the exclusive beneficial ownership of the estate; this characteristic cannot be affected by an intention, however distinctly it may be manifested. Second, the statute does not embrace such a case, and its terms could not be satisfied unless there was a seisin by one person to the use, at least joint or partial, of another and a different person. And, third, where an estate can vest either at the common law or by statute, the rule is that it shall vest at the common law.

If a deed is to be construed like a will by the intention, then the fact that a consideration by or a declaration of the use to the feoffee at the common law was necessary to invest him with the use, proves nothing either way, as it may be pertinently said to exhibit an intention to give him the beneficial ownership of the estate; but, leaving the intention out of view, it marks distinctly the difference between the conveyance of the legal title, and of the beneficial estate. Until the grantor has received a consideration, or made a declaration of the use, he retains his power over the estate; but the moment a consideration is given, or a declaration made, he parts with his control over the estate, which by that act becomes vested in the cestui que use, and cannot be taken away from him by any further act or declaration of the grantor, any more than the legal title can be taken by the grantor.

To return, however, to the case under inspection. This conceit of interpreting a deed by intention in opposition to its language, a mode of construction which one would hardly

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