Uses - Definition - Law Dictionary Home Dictionary Definition uses

Definition :

Uses (History). A use is the intention or purpose, express or implied, upon which property is to be held. The Common Law treated the actual possessor for all purposes as the owner of the property. It was not difficult to find him out, since the possession of his estate was conferred upon him by a formal and notorious ceremony, technically called livery of seisin, which was performed openly and in the presence of the people of the locality.

It soon became evident that the simple rules of the Common Law were stumbling-blocks to the complicated wants of an enterprising people.

Hence ingenuity was sharpened to hit upon a device which should set at nought the rigidity of existing law and formalities.

A system was found by the monastic jurists upon a model furnished by the Civil Law, which, by a nice adaptation, evaded, without overturning, the Common Law. Two methods of transferring realty began to co-exist in this country-the ancient Common Law system, and the later invention, which is denominated USES.

Thus a novel contrivance, which was at first a liberating expedient, became a gigantic system, which superseded the doctrines and practice of feudal law, and laid the foundation of modern conveyancing.

Before the Statute of Uses, a use was in its nature equitable, as such; it may be defined to have been a right in Chancery to the beneficial ownership of property, the possession of which had been confided to another. The Court of Chancery, although without jurisdiction over the property, found a way to make an appeal to the conscience of the apparent or legal owner, backed by its irresistible sanctions. The person enjoying the beneficial right was called the cestui que use, or he to whose use the land was conveyed, and the person in possession, the feoffee to uses. Thus A. conveyed an estate to F. to his (A.'s) own use or to the use of C.;F. was the feoffee to uses, and A. or C., as the case may be, the cestui que use.

Function of feoffee to uses.-The use consisted of three parts:-(1) That the feoffee to uses should suffer the cestui que use to take the profits; and (2) upon the request of the cestui que use, or notice of his will, would convey the estate to the cestui que use or his heirs, or any other person by his direction; and (3) that if the feoffee to uses had been dispossessed, and the cestui que use disturbed, the feoffee to uses could re-enter or bring an action to recontinue his possession.

Properties of uses before the Statute of uses:-

(1) They were descendible according to the rules of the Common Law relating to the inheritable estates of intestates: and the special customs of gavelkind, borough-English, and copyholds, determined the particular descent of uses. This is an illustration of the well-known maxim, 'quitas sequitur legem.

(2) They were devisable even before the Statute of Wills, 32 Hen. 8, c. 1.

(3) They were transferable, although at law they were mere choses in action.

(4) A cestui que use in possession of the land was deemed a tenant at will only, for he had neither jus in re, i.e., an estate nor jus ad rem, i.e., a demand, and therefore he could bring no action, having neither title nor legal estate in the property.

(5) Neither could a widow be endowed, nor could a husband have his curtesy of a use, because the cestui que use had no legal seisin of the land. See DOWER.

(6) The cestui que use might have been impanelled on a jury, 2 Hen. 5, c. 3.

(7) The feoffee to uses, being complete owner of the land at law, performed the feudal duties, had power to sell, brought actions, his widow became entitled to dower, and his estate was subjected to wardship, relief, and forfeiture for treason or felony. In fact, he was treated at Common Law as the absolute tenant of the fee.

(8) A use, being but the creature of equity, could not have been taken in execution for the debts of the cestui que use; for there was no process at Common Law but against legal estates.

(9) A use, not being an object of tenure, was therefore exempt from the oppressive burdens of the feudal system. It was not forfeitable for treason or felony, because it was not held of any person. this was afterwards broken in upon by statute 12 Ric. 2, c. 3.

(10) At one time a use was not assets for the payment of debts by the heir or executor.

There appears to have been a distinction between a use and a trust, even before the Statute of Uses. A special trust appears to have arisen where the feoffee to uses was not only invested with the possession, rents and profits, but was under an obligation to deal with them in a special manner indicated by the feoffor. The indication might be lawful or it might be a special trust unlawful, which was created for fradulent purposes, so as to defraud creditors, to defeat the Statute of Mortmain, and the like.

If the two following statutes be compared, it will be manifest that Parliament did not consider the use and special trust to be the same: the 50 Edw. 3, c. 6, subjected the special trust to an execution by a creditor of the cestui que trust; while the 19 Hen. 7, c. 15, extended, for the first time, the estate of the cestui que use. In general, however, there was but little difference in the terms 'use' and trust. See OFFICIAL USE; ACTIVE USE; PASSIVE TRUST, and infra.

Uses may be classified as:-

I. Present or executed; distributable into:-

(a) Those arising by act of parties, which were created either-

(1) By express declaration in a feoffment, deed, etc.

(2) By presumed intention in a will;

(3) By certain considerations.

(b) Those arising by act of law, which were either-

(1) Resulting;

(2) Implied.

II. Future or executory, distributable into:

(a) Shifting or secondary;

(b) Springing;

(c) Contingent.

See TRUSTS.

Objections to uses before the Statute:-

'Though these uses' (see Gilbert, Uses, c. 1, s. 8) 'had a very equitable beginning, yet, like all new models and general schemes of ordering property, it intro-duced a great many unforeseen inconveniences, and subverted in many instances the institution and policy of the Common Law.

'Firstly. Estates passed by way of use, from one to another, by bare words only, without any solemn ceremony or permanent record of the transaction, whereby a third person that had right knew not against whom to bring his action.

'Secondly. Heirs were deprived of their Common Law rights since uses were devisable.

'Thirdly. Lords lost their wardships, reliefs, marriages, and escheats, the trustees letting the cestui que use continue the possession, whereby the real tenants that held the lands could not be discovered.

'Fourthly. The king lost the estates of aliens and criminals; for they made their friends trustees, who kept possession, and secretly gave them the profits, so that their use was undiscovered.

'Fifthly. Purchasers were insecure; for the alienation of the cestui que use in the possession was at Common Law a dissesin, and 1 Ric. 3, c. 1, gave him power to alien what he had; yet the feoffees may still enter to re-vest a remainder or contingent use, which was never published by any record or delivery, whereby the purchaser could know of them.

'Sixthly. Uses were not subject to the payment of debts.

'Seventhly. Many lost their rights by perjury in averment of secret uses.

'Eightly. Uses might be allowed in mortmain.'

These grievances led to the passing of the Statute of Uses.

This Act, 27 Hen. 8, c. 10, is usually called the Statute of Uses; its title on the Parliament roll is, 'An Act concerning Uses and Wills,' and in pleading it used to be described as Statutum de usibus in possessionem transferendis. It became a pivot of English conveyancing. Its effect was that where any person was seised to the use of another, then the person enjoying the use was to be deemed to have the actual and lawful seisin, estate or possession corresponding to the use, and the statute transferred the (legal) seisin, estate or possession accordingly to the cestui que use.

It has been generally said that one object aimed at by this statute was the total destruction of the use, by effecting an amalgamation of the legal and equitable interests; but this object, if it existed, has failed owing to the equitable jurisdiction of the Courts of Chancery and the judicial interpretation by the Common Law judges of the meaning of this celebrated statute.

Requirements of the Statute:

There are several circumstances necessary to the execution of uses under the statute, viz.:-

(1) A person seised to the use.

(2) A cestui que use in esse.

(3) A use in esse in possession, reversion, or remainder.

(4) Every species of realty, except copyholds, whether corporeal or incorporeal, in possession, reversion, or remainder, may be conveyed to uses, but it must be in esse.

(5) There must be seisin in the grantee, or feoffee, to uses at the time of the execution of the use.

(6) The use may be raised by a conveyance operating either by transmutation or non-transmutation of possession (see infra).

Non-operation of the Statute:

The Statute of Uses did not operate to vest the legal estate in the cestui que use in the following cases:-

(1) Uses limited of copyholds-sine no person can be introduced into the estate without the lord's consent; for if use were permitted, there would then be effected a transmutation of the possession by operation of law, which would be contrary to the peculiarity of the kind of tenure.

Yet shifting or springing uses may be limited by copyhold surrenders, so as to have the effect of divesting prior vested estates.

(2) Upon a demise to the grantee to uses of leaseholds and chattel interests. It is said that the statute contemplated freeholds only, and therefore employed the word SEISED; now a tenant is only possessed of a leasehold for years. but the use declared upon a feoffment, etc., might be of a term of years and there was nothing to prevent the cestui que use from having the legal estate in the term of which the legal reversion could be released. See LEAE AND RELEASE.

(3) Active and constructive uses. When the use involves a direction to sell the estate and then divide the proceeds of the sale or to pay debts, or to pay over the profits, or to convey to a child on attaining majority, or to re-convey on the repayment of a mortgage-loan, the statute was precluded from the very nature of the transaction from converting such a use into a legal right to the land, and equity, therefore, compels the trustee, who retains the legal estate notwithstanding the statute, to perform the duty confided in him.

And the trustee had the legal estate (if properly invested in him) in the following cases: A trust to permit a feme covert to receive the profits for, or to pay the same to, her separate use; and so of a trust to permit and suffer a party to receive and take the net rents and profits.

(4) A second use, or a use upon a use. The Common Law judges determined that the statute could only operate upon one use, and where another use was superadded it was a mere nullity, since it was an interest unknown to the Common Law before the statute. This doctrine and its consequences have been explained thus:

There are three conveyances, viz., appointment to uses, bargain and sale, and covenant to stand seised where there is no transmutation or change of possession but only a use raised in favour of the appointee, purchaser or covenantee, and a transmutation of the legal estate by virtue of the Statute of Uses, while there are other conveyances such as feoffment grant or which transmute the possession at law, and no use in raised at all unless declared or implied upon the change in possession. Consequently if a use is declared upon a conveyance of the first kind, that use would be a use upon a use; in conveyances of the latter class, the use (if any) declared is the first and the only use, on which it has been held that the Statute of Uses can work.

The following examples point out the peculiar operation of these two classes of transfers, i.e. (a) transmutation of possession as to the vesting of the legal and equitable estates:-

An Appointment, Bargain and Sale, or Covenant to stand seized

To D. and his heirs,

To the use of T. and his heirs,

To the use of, or in trust for, s. and his heirs,

vests the legal estate or use in D. and the equitable estate in S., T. not taking any legal estate. But

A Feoffment or Grant

To D. and his heirs,

To the use of T. and his heirs,

To the use of, or in trust for, s. and his heirs,

gives D. but a seisin, and vests the use or legal estate in T., and the equitable estate in s.

A release does not transmute the possession but it transvests the legal ownership and has the same effect as a feoffment or grant.

It was to avoid the divesting of the legal estate in the feoffee to uses that the practice grew up of a feoffment or grant by A. to B. and his heirs to the use of B. and his heirs, or, in the usual form, Unto and to the Use of B. and his heirs. A feoffment or grant to B. and his heirs would have been perfectly good to transmute the possession and transfer the legal estate, but if a use arose expressly or by implication on that estate, B. would have lost the legal estate without any transmutation of posses-sion from him, and it may be suggested that the additional words, so far from being superfluous, meant no more than to express the grant to be for the benefit of the grantee as his legal estate, subject, of course, to any trust that may have been engrafted on the grant.

Upon this doctrine that there can be no use upon a use, equity interfered, and resuming her old dominion, treated C., the person having the second use, as the beneficiary, and compelled B., having the statute use, to deal with the estate for C.'s benefit as a trustee, and then giving the technical term of 'trust' to C.'s second use, deprived the use properly so called of its beneficial interest, and revived the twofold system of one person holing the legal estate in the land, while the equitable estate or the usufructuary right therein was actually enjoyed by another, and thus the Court of Chancery reasserted its jurisdiction over uses under the name of trusts.

Although, for the sake of distinction, and in practice, the first use executed by the statute is called a use, and the second use not executed by the statute a trust, yet this phraseology is altogether arbitrary; for either word may be applied indiscriminately and convertibly to either estate, sine the particular interests enjoyed by the parties depend upon their position with regard to one another, and not upon the term employed in their denomination. The usual and strictly technical form is:-

To F. to the use of F. or to the use of C in trust for E. (but it is immaterial whether it is in this form), so that a trust in name may be a use in effect, and e converso.

(5) Future executory and contingent uses cannot be executed into legal estates by the statute until they arise.

(6) It is said that devises are not within the Statute of Uses, because it was passed before the Statute of Wills (32 Hen. 8, c. 1, AD 1540). But this is of no practical importance, since the Courts, in their decisions, are entirely guided by a testator's intention, and it has been always held that if A. devise to B, and his heirs, to the use of or in trust for C. and his heirs, or in trust to permit C. and his heirs to take the profits, it shows that the testator intended that C. should have the legal estate in fee, and so the law decided. And if there be a devise to the use of A. for life, with remainder over, although it could not take effect by way of a use executed by the statute, because there was no seisin to serve the use, yet A. would have the legal estate. Indeed, uses were executed in a will as if they were limited by deed, if such was the testator's intent. See the judgment of Jessel, M.R., in Baker v. White, (1875) LR 20 Eq 166.

The practical advantages of the system, subsequently to the statute, were:

Conveyances to uses legalized many dispositions which were altogether void at the Common Law, for uses might be suspended, revived, postponed, and accelerated in a way altogether opposed to the rules of the ancient feudal law. Amongst the most important relaxations thus introduced were the following:-

(1) A person could convey to himself, which he could not at the Common Law, as it would have been absurd to give possession by livery of seisin to one's self. This was found to be convenient, especially in the following example:

It frequently happened that upon the death or removal of trustees, it became necessary to fill up their number pursuant to a power for that purpose, usually introduced into settlements of real property. In order to effect this it was formerly the practice for the old trustees to make a conveyance, which operates by way of transmutation of possession (either by release or grant) to the new trustees and their heirs, to the use of the old and new trustees and their heirs. Without the assistance, therefore, of the Statute of Uses, it would have been necessary in the above case that the old trustee should have first enfeoffed A., who would have re-enfeoffed the old and new trustees jointly, thereby making two conveyances necess-ary. Indeed, in the case of terms for years, and other personal property, two assignments ere required for this purpose, until 22 & 23 Vict. c. 35, s. 21; and by the (English) Conveyancing Act, 1881, s. 50, freehold land might be conveyed by a person to himself jointly with another, and by the (English) Law of Property Act, 1925, s. 72, to himself alone; this s. also reproduces the last-mentioned two enactments.

(2) A conveyance could not have been made by a husband to his wife, but by limiting a seisin to the grantee or release, the husband might declare the use to his wife, which the statute would execute.

(3) A man could not make his own heirs a purchaser, even of an estate tail, for filius est pars patris-h'res est pars antecessoris; but a man might limit the use so as to make his heirs special take, either by purchase or descent.

(4) No person could take a present interest in the habendum of a deed who was not named in the premises. But in a case where A. enfeoffed B., habendum to the said B. and C., their heirs and assigns, to the use and behoof of the said B. and C., their heirs and assigns, it was resolved that, as C. was not named in the premises, he could take no possession originally by the habendum; and that the livery, made according to the intent of the indenture, did not give anything to C., because as to him it was void; but though the feoffment did not give any seisin to C., yet it did to B. and his heir, which seisin was sufficient to serve the use declared to C. Therefore the use limited to B. and C. was good and the statute executed it. But this limitation of the use in a bargain and sale to a person not named in the premises, after a previous disposition of it to the bargainee, would be ineffective to pass the legal estate for the reasons before mentioned. (5) So it was rule of law that if an estate be conveyed to two, the one being capable and the other incapable at the time of the grant, he who was capable should take the whole, and that joint tenants cannot take at different periods. But since the introduction of uses, if A. made a feoffment in fee, to the use of B. and his future wife, though the whole estate would vet in B. At first, yet upon his marriage the wife would take jointly with him. So if a disseisin be had to the use of two, and the one agreed to it at one time, and the other at another, they became joint tenants.

(6) An estate of freehold could not be granted, apart from statute, at the Common Law, to commence in futuro, nor could a contingent remainder be supported, without an express particular estate of freehold (see CONTINGENT REMAINDERS), but by a conveyance under the Statute of Uses, a freehold could be created to commence in futuro, and future limitations would have been supported when no particular estate had been made, either as remainders or springing uses.

(7) An estate could not at the Common Law be limited upon a fee-simple, i.e., a fee-simple could not be made to cease as to one, and take effect by way of limitation upon a contingent event in favour of another person; but such a limitation could take effect by way of shifting or springing use. A shifting or springing use, after a previous limitation of the fee, could not be barred by the cestui que use by any kind of conveyance, but where it was limited upon an estate-tail the tenant-in-tail could bar it.

(8) Every remainder, at the Common Law, must be limited, so as to await the determination of the particular estate, before it can take effect in possession: but an abridgment of the particular estate, upon a certain condition, could be effected by a conveyance to uses, so as to accelerate the expectant estate into possession.

The Statute of Uses has been repealed by the (English) Law of Property Act, 1925 (see s. 207 and 7th Sch.), and many former legal estates can only take effect in equity now, but the law on the subject is still applicable to the investigation of titles p to 1926 [s. 1 (10), ibid.], and a direction in any statute or other instrument requiring land to be conveyed to uses shall (subject to creating or reserving there out any legal estate authorized by the L.P. Act which may be required) be conveyed to a person of full age upon the requisite trusts; and see ss. 130 to 132 of the same Act; also s. 65 (reservations in

lieu of grants of rent-charges, easements, etc.); s. 66 (confirmation of past transactions), and s. 4 (equivalence inequity of former legal estates). See LAW OF PROPERTY; SETTLED LAND and VOLUNTARY CONVEYANCE.