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be conveyed by matter of record, that is, a fine or recovery.
In Equity, on the other hand, prior to the Statute of Uses, an Use or Equitable estate might be created or transferred without any form whatever, or (according to the nature of the consideration) by a simple deed; provided in either case that the transaction was founded upon the appropriate consideration. For an Use might be created, that is, severed from the Legal estate, not only upon the occasion of a common law conveyance of the Legal estate, by means of a declaration of Uses superadded upon such common law conveyance; in which case, of course, the transaction, viewed as a whole, included the appropriate common law formalities; but also independently of any conveyance of the Legal estate; provided in that case, that the transaction was founded upon a particular consideration, namely, the consideration of money or money's worth, or that of natural affection or marriage. • When the transaction was founded upon
the consideration of money or money's worth, no form whatever was required. The Use passed to the alienee without any writing, livery, entry, or other form or ceremony whatever. Such a conveyance of the Equitable estate was termed a Bargain and Sale of the Use.
When the transaction was founded upon the consideration of natural love and affection or marriage, it was necessary that a deed should be employed; but upon the execution ofthe deed the Use passed to the alienee without livery or any further ceremony. Such a conveyance of the Equitable estate was termed a Covenant to Stand Seised to Uses.
After the passing of the Statute of Uses, Uses might still be created in the same modes as before the Statute; and, when created, the Statute annexed the Legal estate to the Use. After the Statute, therefore, an Use might still be created by a Bargain and Sale, founded upon the con
sideration of money or money's worth, without any form or ceremony whatsoever; or by a Covenant to Stand Seised, founded upon the consideration of natural affection or marriage, without any form other than a simple deed ; and in either case the Statute annexed the Legal estate to the Use so created. The result was that, indirectly and through the operation of the Statute, Bargains and Sales and Covenants to Stand Seised became conveyances of the Legal estate; and the Legal estate itself might be conveyed with no other ceremony than that of a simple deed, or even, if the consideration for the conveyance were that of money or money's worth, without any form or ceremony whatsoever.
This result of the Statute of Uses seems to have been quickly perceived by the Legislature ; for, by an Act passed in the same year as the Statute of Uses, namely, the twenty-seventh of Henry VIII., c. 16, commonly called the Statute of Enrolments, it was enacted that no estate of inheritance or freehold in any lands, tenements, or hereditaments, should be conveyed, nor any Use therein created by any bargain and sale thereof, unless such bargain and sale were by deed indented and enrolled within six months after its date in one of the Courts of Record at Westminster, or with the Clerk of the Peace for the County in which the lands lie.
After this Statute a Bargain and Sale of an estate or Use of inheritance or freehold ceased to be a formless conveyance, and required to be perfected by a deed and enrolment. The Statute, however, had no application to bargains and sales of estates or Uses of less than freehold duration, and such bargains and sales might still be made without the employment of any form. This construction of the Statute, coupled with the desire to avoid the ceremony of enrolment, led to the introduction of a compound conveyance, whereby a Legal estate of inheritance or freehold might, in effect, be
conveyed, without either the common law ceremony of livery, entry, attornment, or matter of record, or the Statute ceremony of enrolment.
This conveyance was the celebrated conveyance by Lease and Release, which for a period of three centuries after the passing of the Statute of Uses was the common assurance of the realm. It consisted of two parts:
The first part was a bargain and sale, founded upon some pecuniary consideration, usually nominal, for a term, usually one year. This bargain and sale, where the conveying party had an estate of freehold (and to such a case only was the conveyance by Lease and Release applicable), transferred to the bargainee, without any form or ceremony, an Use for the term expressed, which the Statute of Uses converted into a Legal estate.
The intended alienee having thus, without any entry, acquired a term in the lands was competent, according to the common law doctrine, to receive an enlargement of his estate by a simple deed of Release. The second part of the conveyance was, accordingly, a common law convey. ance to the bargainee of the reversion in fee simple expectant upon his term; this conveyance was made by a simple deed of Release, which operated by way of enlargement of the previous estate of the relessee.
The conveyance by Lease and Release, therefore, depended for its operation on the Legal estate, partly upon the Statute of Uses and partly upon the common law.
The conveyance by Lease and Release continued to be the common assurance of the realm down to the year 1841, when the Statute 4 and 5 Vic., c. 21, was enacted, whereby a simple deed of Release, if purporting to be made in pursuance of the Act, was made as effectual for the conveyance of freehold estates as a Lease and Release, although no bargain and sale of a term or lease had been executed. And in the year 1845, a common law conveyance,
which in its origin was applicable only to the creation and transfer of incorporeal hereditaments, namely, a Deed of Grant was, in effect, substituted for the old conveyance by Lease and Release, as the common mode of conveying freehold estates, by virtue of an enactment contained in 8 and 9 Vic., c. 106, s. 2, that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery.
Since this enactment, the Statute of Uses has, in practice, ceased to affect the form of conveyance of the Legal estate, that is, the ceremony with which such conveyance requires to be perfected.
The effect, therefore, of the Statute of Uses upon the present system of conveyancing may be said to consist in this, that it renders valid executory limitations not by way of remainder of Legal estates of freehold, such limitations being void at the common law in an instrument operating inter vivos.
The question whether it is desirable to repeal the Statute of Uses depends upon what it is proposed to substitute in its place.
If it be proposed, in repealing the Statute, to enable the Legal estate in land to be dealt with directly as freely as, by virtue of the Statute, it may be dealt with indirectly and through the medium of a limitation of an Use; if, in short, it be proposed, when repealing the Statute, to repeal also those feudal rules which we have referred to, there can be no doubt that a repeal of the Statute is desirable. Such a repeal would be beneficial, not merely in sweeping away a highly artificial and extremely complex branch of law, which still occasions doubt and difficulty to the student and the theorist, and sometimes also to the practitioner, but also in abolishing those rules established in Archer's Case (1 Rep., 66), in Chudleigh's Case (1 Rep., 120,
Poph. 70), and in Adams v. Savage (2 Salkeld, 679), and Rawley v. Holland (22 Vin. Abr. 189), which have so often defeated the intentions and the expectations of parties. For these rules, as has been already shown, flow directly from the old feudal rules above referred to.
If, however, it be not proposed in repealing the Statute of Uses to enable the owner of land to deal directly with the Legal Estate therein as freely as, by virtue of the Statute, he may now deal with it indirectly, then the question as to the desirability of repealing the Statute raises very different considerations.
As has been already shown, the power of an owner of land to deal with the Legal estate therein by means of executory limitations not by way of remainder depends upon the Statute of Uses. The result, then, of a simple repeal of the Statute of Uses, without substituting any system in its place, would be that an owner of land desiring to make a settlement thereof, would either be confined to such limitations as were valid at the common law, that is, to executory limitations by way of remainder, with their liability to fail by the determination of the particular estate before the vesting of the estate in remainder; or he would be compelled to vest the Legal estate in trustees and make his settlement a merely Equitable settlement.
In the latter case, the repeal of the Statute would have served no beneficial end but have created some inconvenience, namely, the entire severance of the Legal ownership from the beneficial interest.
In the former case, the question of the repeal of the Statute opens up the question of land settlement, a great question, which may be reserved for future consideration.
W. H. UPJOHN.