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relation which follows from the very definition of an estate in remainder, as a remnant of an estate in lands or tenements expectant upon a particular estate created together with the same at one time" (see Co. Litt., 143a).
Now a limitation of an Use to be acquired upon the happening of some future event always took effect according to the intention of the parties, upon the happening of the event- specified, and although a particular estate limited by a preceding limitation might have determined at some previous time (see Hopkins v. Hopkins, Cases temp. Talbot, 44; 1 Atkins, 590 ; Chapman v. Blisset, Cases temp. Talbot, 145). The limitation, therefore, lacked that connection with or relation to the preceding limitation which is of the essence of a limitation by way of remainder.
At the time of the passing of the Statute of Uses, therefore, limitations of Uses were free from the trammels of those feudal rules which governed all limitations of Legal estates of freehold duration ; and this is particularly seen in the freedom with which Uses might be limited to arise and to vest in any person upon the happening of a future event.
The Statute of Uses, as has been already shown, did not prohibit or restrict the creation of Uses, but simply operated upon the Use when created by uniting to it the Legal estate, which it imbued with the “manner, form, and condition" of the Use.
After the Statute, therefore, Uses might be limited in the same modes as before the Statute, and, therefore, executory limitations of Uses not by way of remainder were valid after the passing of the Statute as before. But since the Statute immediately annexed the Legal estate to the Use, it followed that the Legal estate itself, even of freehold duration, might indirectly, and through the medium of a formal limitation of an Use, be limited in the same modes as the Use itself might be limited. Executory limitations
not by way of remainder of Legal estates of freehold, therefore, became valid, even in a conveyance operating inter vivos, provided that such limitations were in form declarations of Uses to arise out of the seisin in the land of another person than those in whose favour such Uses were declared.
After the passing of the Statute of Uses, therefore, a limitation of a Legal estate of freehold to vest in the person to whom it is limited at some future time was valid, although not preceded in the same conveyance by any limitation of a particular Legal estate of freehold, provided that such limitation was in form a declaration of an Use. So, also, after the passing of the Statute, a limitation of a Legal estate of freehold to take effect in defeasance of a preceding limitation contained in the same instrument was valid, provided that the limitations were in form limitations of Uses. So, also, after the passing of the Statute, the destination of the Legal estate in land might be made dependent upon the will of a person designated, whether the owner of the land or a stranger, by means of a common law conveyance of the land to such Uses as the person designated should, in the manner prescribed, appoint; for as soon as an Use was raised by an appointment made by the person designated in the manner prescribed, the Statute annexed the Legal estate to such Use.
This was the most important effect of the Statute of Uses, that it enabled the owner of land to deal with the Legal estate therein in modes in which he could not have dealt with it at the common law, namely, by validating executory limitations not by way of remainder.
It has been laid down, generally, that the effect of the Statute was, that the Legal estate might, indirectly and through the medium of a formal limitation of an Use, be limited in the same modes as, before the Statute, the Use itself might be limited.
To this general rule, however, two exceptions have been introduced by judicial decision.
The first exception is, that if an executory limitation of an Use be such that if it had been a common law limitation and not a declaration of an Use, it would have been construed as a limitation by way of remainder; in such a case, notwithstanding the interposition of a declaration of an Use, and notwithstanding that an Use could not before the Statute be limited by way of remainder, the limitation must be construed as a limitation by way of remainder ; such a limitation was, therefore, prior to the recent enactments contained in the 8 & 9 Vic., c. 106, s. 8, and the 40 & 41 Vic., c. 33, liable to fail by the determination of the particular estate before the happening of the event upon which the estate limited by the subsequent executory limitation was to vest. This doctrine was established in Chudleigh's Case, Dillon v. Freine (1 Rep., 120; Popham, 70; I Anderson, 309).
A corollary to the rule in Chudleigh's Case is, that where an executory limitation can be construed as a limitation by way of remainder, it shall be so construed, and shall not be construed as a limitation not by way of remainder (see Carwardine v. Carwardine, stated in Fearne's Cont. Rem., p. 302).
The second exception is, that if an executory limitation of a Legal estate of freehold be preceded in the same instrument only by a limitation of a term, such limitations, though limitations of Uses, and though such limitations of Uses were clearly valid before the Statute, must be governed by the same rules as if they were common law limitations, and not limitations of Uses. The result of this is, that the subsequent executory limitation is void, if contained in a conveyance operating inter vivos, as offending against the feudal rules previously stated. This doctrine was established in the cases of Adams v. Savage, 2 Salkeld, 679; 2 Ld.
Raymond, 854 ; and Rawley v. Holland, 22 Viner's Abr., 189.
It seems difficult to justify either of these exceptions upon principle.
Before leaving this branch of the subject, it should be observed that the effect of the Statute of Uses in validating executory limitations not by way of remainder of Legal estates of freehold, was confined to conveyances made inter vivos. The feudal rules above stated were not applied to limitations contained in a will; consequently, in a will, an executory limitation not by way of remainder was always valid, even though it was a direct limitation of the Legal estate without any interposition of an Use; indeed, it is a much debated question whether the Statute of Uses applies to, or executes Uses declared by, a will.
Besides indirectly validating executory limitations not by way of remainder of Legal estates of freehold, the Statute of Uses has had the effect of enlarging the power of disposition which the owner of land possesses over the Legal estate therein in other respects also.
Thus, at the common law, the owner of land could not directly convey an estate therein to himself, the rule being
nemo potest esse et agens et patiens.” And, husband and wife being considered in law as one and the same person, it followed that neither could directly convey to the other. If, therefore, the owner of land desired to convey some new estate therein to himself, or to convey an estate therein to his wife, it was necessary for him to make a conveyance to a stranger, and to obtain a reconveyance from such stranger to himself, or to his wife (as the case might be). In Equity, however, before the Statute of Uses, a person might have declared an Use in his own favour, or in favour of his wife. Consequently, after the passing of the Statute of Uses, the owner of land might, by one conveyance, convey a new estate therein to himself, or convey an estate therein to his
wife, by the simple expedient of declaring in a common law conveyance to a stranger Uses in favour of himself or his wife.
Again, at the common law, in order that an estate might vest in several persons as joint tenants, it was necessary that it should vest in them all at one and the same instant. But it is said by Lord Coke, that by means of limitations of Uses an estate may vest in several persons as joint tenants at several times. The explanation of this, however, appears to be that the limitation operates as a limitation of a shifting Use, so that, upon a new joint tenant coming into existence, the Use, and with it the Legal estate, shifts away from the former joint tenants, in whom it then resided, and vests in the former joint tenants jointly with the new joint tenant.
Having considered the effect of the Statute upon the dispositions which might be made of the Legal estate in land, we now proceed to consider
(6) The effect of the Statute upon the form of the disposition of the Legal estate.
At the common law, prior to the Statute of Uses, a conveyance of a Legal estate of freehold duration always included some form or ceremony. If the estate conveyed was an estate in possession, the form commonly employed was livery of seisin, that is, a delivery to the alienee of the seisin or feudal possession of the land ; though an estate of freehold in possession might have been conveyed by means of a lease and an actual entry by the lessee, followed by a release by deed from the lessor to the lessee thus in possession. If the estate to be conveyed was an estate in remainder or reversion expectant upon some particular estate, the appropriate form was a deed of grant followed by the attornment to the grantee of the particular tenant. And whether the estate to be conveyed was an estate in possession or an estate in remainder or reversion, it might