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USES AND “AUTOMATIC” RESULTING TRUSTS OF FREEHOLD

  • N.G. Jones (a1)
Abstract

Drawing upon the history of the doctrine of the old use, Professor John Mee has suggested both that the extent of the authority for a “retention” approach to “automatic” resulting trusts has been overlooked, and that while as a matter of history a “retention” approach has significant support, as a matter of principle in the modern law it is not fully satisfactory, so that it is necessary to look elsewhere for a theoretical explanation for the “automatic” resulting trust. This article examines the reasons for the inconsistency identified by Professor Mee, seeking to elucidate the relationship between uses and trusts, to contribute to the history of resulting uses and trusts, and to explain why the modern “automatic” resulting trust has become a rule in search of a rationale.

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Address for correspondence: Magdalene College, Cambridge, CB3 0AG. Email: ngj10@cam.ac.uk.
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1 J. Mee, “‘Automatic’ Resulting Trusts: Retention, Restitution, or Reposing Trust?”, in C. Mitchell (ed.), Constructive and Resulting Trusts (Oxford 2010), 207, discussed in Virgo, Graham, The Principles of Equity and Trusts (Oxford 2012), 262265. See also Mee, J., “Resulting Trusts and Voluntary Conveyances of Land, 1674–1925” (2011) 32 Journal of Legal History 215, and Mee, J., “Resulting Trusts and Voluntary Conveyances of Land” [2012] Conveyancer 307.

2 This terminology derives from the judgment of Megarry J. in Re Vandervell's Trusts (No. 2) [1974] Ch. 269. For its appropriateness, see Mee, “‘Automatic’ Resulting Trusts”, p. 210.

3 Hackney, J., Understanding Equity and Trusts (London 1987), 153. The other category of resulting trusts is those which are “presumed”, in cases of voluntary conveyance or purchase of property in the name of another.

4 Mee, “‘Automatic’ Resulting Trusts”, p. 210.

5 Swadling, W., “Explaining Resulting Trusts” (2008) 124 L.Q.R. 72, at 99–100.

6 C. Mitchell, in Mitchell (ed.), Constructive and Resulting Trusts, preface, p. v.

7 Mee, “‘Automatic’ Resulting Trusts”, p. 221.

8 Ibid. For historical discussion of the beneficiary's interest, see N. Jones, “Trusts in England after the Statute of Uses: A View from the Sixteenth Century”, in R. Helmholz and R. Zimmermann (eds.), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (Berlin 1998), 173, at 190–192, and N.G. Jones, “The Trust Beneficiary's Interest before R. v. Holland (1648)”, in Lewis, A., Brand, P. and Mitchell, P. (eds.), Law in the City: Proceedings of the Seventeenth British Legal History Conference, London, 2005 (Dublin 2007), 95.

9 Mee, “‘Automatic’ Resulting Trusts”, p. 218.

10 Ibid.

11 Mee, “‘Automatic’ Resulting Trusts”, p. 217 n. 47 (referring to N.G., Jones, “Uses, Trusts and a Path to Privity” [1997] C.L.J. 175, at 178182).

12 Copyhold land might also be included, albeit copyhold tenure no longer persists. The story in relation to forms of property other than the freehold estate in fee simple is complex. The questions include the effect upon the operation of uses and trusts of tenurial relationships (as in, for example, estates in fee tail and terms of years), and the extent to which the distinction between uses and trusts applicable to the fee simple applied to chattels real and personalty. Opinion was divided in these areas. For discussion of the fee tail, see, inter alia, Yale, D.E.C. (ed.), Lord Nottingham's ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge 1965), 245246, and 248 (“whether tenant in tail can stand seised to an use is a point much controverted in our books”), and W.H. Rowe (ed.), The Reading upon the Statute of Uses of Francis Bacon (London 1804), 114 ff (observing, at p. 114, that “Whether an estate tail can be by express limitation to the use of another has been vexata quaestio”). Rowe argued that “at this day … an estate tail cannot be by express limitation to the use of another”: ibid., p. 193. See also J. Gilbert, The Law of Uses and Trusts, 3rd ed., by E.B. Sugden (London 1811), 19. But compare, for example, F.W. Sanders, An Essay on Uses and Trusts, 5th ed., by G.W. Sanders, vol. 1 (London 1844), 87–88. See also Co. Litt. 19b, and T. Lewin, A Practical Treatise of the Law of Trusts, 5th ed. (London 1867), 5. On terms of years, there was doubt, at least initially, as to whether there could be a use in the sense considered in this article (see Jones, “Trusts in England after the Statute of Uses”, p. 173, at pp. 180–181). And the difficulty over tenure also applied: Lord Nottingham concluded that “a lease for life or years without consideration is to the use of [the] lessee. So if lessee for life or years assigns his estate without consideration, no use results, but it is to the use of the grantee, because the payment of the rent to him in reversion implies a consideration, and it is to the use of the grantee … and this by implication of the law, though no use be limited to the grantee”, Yale (ed.), Nottingham's ‘Manual’ and ‘Prolegomena’, p. 246. None of these difficulties was conducive to a retention analysis of resulting trusts of fees tail or terms of years. The case of pure personalty is more obscure, though difficulties over the existence of uses of pure personalty in the sense discussed in this article probably arose.

13 Mee, “‘Automatic’ Resulting Trusts”, p. 217, quoting Lord Mansfield C.J.K.B. in Burgess v Wheate (1759) 1 Black. W. 123, at 155. The point is repeated in Mee, “Resulting Trusts and Voluntary Conveyances of Land, 1674–1925” (2011) 32 Journal of Legal History 219, while referring in a note to discussion of the differences between uses and trusts by D.E.C. Yale, and by N.G. Jones. In “Resulting Trusts and Voluntary Conveyances” [2012] Conveyancer 307, Professor Mee moves somewhat closer to suggesting a distinction between uses and trusts: “there were, in principle, significant differences between ancient uses and modern trusts”, ibid., p. 322, and refers to “the possible difference between a use and a trust”: ibid., p. 322

14 Mee, “‘Automatic’ Resulting Trusts”, p. 217

15 Referring to Vandervell v Inland Revenue Commissioners [1967] 2 A.C. 291, at 308, 313, 314, and 329. The extent to which such “reflection” was conscious is unclear.

16 27 Hen. VIII, c. 10.

17 Mee, “‘Automatic’ Resulting Trusts”, p. 218.

18 Ibid., p. 221.

19 Jones, “Uses, Trusts and a Path to Privity”, p. 175, at pp. 176 ff.

20 ‘The student will understand the subject more easily if he … starts from the fact that “use” simply means “benefit”’, C. Sweet, “The True Doctrine of the Old Use”, 63 The Solicitors' Journal & Weekly Reporter, 23 Nov. 1918, 79, at 80 n. 1.

21 For “thinglikeness” in the context of incorporeal hereditaments, see Pollock, FrederickSir and Maitland, F.W., The History of English Law before the time of Edward I, 2nd ed. (Cambridge 1898), vol. 2, 124125. For conceptions of the use as an hereditament, see Jones, “The Trust Beneficiary's Interest before R. v. Holland (1648)”, at pp. 96–99.

22 Or to the use of feoffor and his heirs, which was the same thing: Sir John Baker, Oxford History of the Laws of England, vol. 6, 1483–1558 (Oxford 2003), 653 n. 4, citing Anon. (1549) Wm. Yelv. 346, no. 72. A feoffment was a common law conveyance of freehold by entry upon the land with symbolic delivery of seisin.

23 For medieval uses see Barton, J.L., “The Medieval Use” (1965) 81 L.Q.R. 562; J. Biancalana, “Medieval Uses”, in Helmholz and Zimmermann (eds.), Itinera Fiduciae, pp. 111 ff; Baker, Oxford History of the Laws of England, vol. 6, ch. 35.

24 That the beneficiary enjoyed the land as if an owner gave rise to conveyancing uncertainty, for which a remedy was attempted by the statute 1 Ric. III, c. 1 (1484).

25 For discussion of this, see A.W.B. Simpson, A History of the Common Law of Contract: the Rise of the Action of Assumpsit (reprinted Oxford 1987), 344.

26 “ou nul use est expresse in le consideracion dun fait le ley expound le use pur le benefit de celuy a que le possession est departed”, British Library (BL) MS. Hargrave 87, fo. 438v. Audley was reading in the Inner Temple on the statute 4 Hen. VII, c. 17. As Simpson observes, such rules were originally “[c]ommonsensical” (History of the Common Law of Contract, p. 344). Compare Gregory Adgore's observation in his reading on the statute 1 Ric. III, c. 1 in about 1490, that a feoffment to a husband and wife and their heirs “is to the use of the husband and wife, and not to the use of the feoffors, for it shall not be understood that a man wishes to enfeoff a married woman to his use”, Lincoln's Inn MS. Maynard 3, fo. 196 (translated).

27 Jones, “Uses, Trusts and a Path to Privity”, p. 179.

28 Ibid., pp. 214–215.

29 Christopher St German, Doctor and Student, T.F.T. Plucknett and J.L. Barton (eds.) (Selden Soc. 91) (London 1974), 222, from the second dialogue, published in English in 1530, rendered into modern orthography. The date “1518” given by Professor Mee seems to be a slip.

30 For “possession” and “use” in St German's senses see Brent's Case (1575) 2 Leo. 14, pl. 25, at 16 per Manwood J.C.P., “even though the possession is now executed to the use [by the Statute of Uses] …”.

31 Cf. Professor Chambers's suggestion that “At one time a person may have been able to hold property for his or her own use, so that a transfer with no consideration and no declaration of use would leave the use behind”, R. Chambers, Resulting Trusts (Oxford 1997), p. 53.

32 “home seisi a son proper use”, BL MS. Hargrave 87, at fos. 438v and 439.

33 “on est seisi a son use demesne”, Y.B. Hil. 21 Hen. VII, fo. 18, pl. 30 (1506).

34 “The question which could hitherto arise only before the chancellor, and only in terms of his choosing whether to decree a conveyance in accord with an earlier or a later declaration of will, would now arise in a common law court in an action to try title”, S.F.C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London 1981), 216, referring to the effect of the statute 1 Ric. III, c. 1. Mr. Barton's caveat should be kept in mind: “Of more interest for us are the common law decisions on specifically equitable topics, which provide the basis for the accepted account of the law of uses before the Statute of Uses. It should be emphasised, however, that it is necessary to use them with a good deal of caution. Not all the common law judges were particularly happy at the idea of receiving the doctrines of the Chancery in complexu, or even fully aware of what those doctrines were”, Barton, “The Medieval Use”, p. 562, at pp. 574–575. For the statute of 1484 see Baker, Oxford History of the Laws of England, vol. 6, pp. 654 ff.

35 Per Roo, serjeant, in Gervys v Cooke (1522), J.H. Baker (ed.), Year Books of Henry VIII, 12–14 Henry VIII, 1520–1523 (Selden Soc. 119) (London 2002), 108, at 111.

36 Per Kingsmill, serjeant, in Anon. (1502), J.H. Baker (ed.), Reports of Cases by John Caryll, pt. 2, 1501–1522 (Selden Soc. 116) (London 2000), 395. As Simpson put it, “The institution of the use began life as a personal trust or confidence reposed in a feoffee to uses by the feoffor”, Simpson, History of the Common Law of Contract, p. 357.

37 Sir John Baker, Baker and Milsom, Sources of English Legal History: Private Law to 1750, 2nd ed. (Oxford 2010), 112 n. 26.

38 Ibid., p. 118.

39 “cestuy qui avoit le use”, per Shelley and Englefield J.J.C.P., Y.B. Trin. 19 Hen. VIII, fo. 9, pl. 4, at fo. 10b.

40 “les feoffees ne sont barrez a claimer le use de terre a le use de le issue in tail”, per Fitzjames C.J.C.P. and others, Y.B. Trin. 19 Hen. VIII, fo. 13, pl. 11, encompassing both the “thinglike” approach to uses, and the broader meaning of use as benefit.

41 “quel estat Giles ad in le use”, per Mountague, serjeant, Y.B. Pas. 27 Hen. VIII, fo. 5, pl. 15.

42 “le use en fee descenda a un P.G.”, Y.B. Mich. 21 Hen VII, fo. 33, pl. 28.

43 F.W. Maitland, “Trust and Corporation”, in H.A.L. Fisher (ed.), The Collected Papers of Frederic William Maitland, vol. 3 (Cambridge 1911), 321, at 343.

44 E.N. D[urfee], “The Statute of Uses and Active Trusts”, 17 Michigan Law Review (1918–19), 87, at 90.

45 The terms “divided” and “conjoined” were used by Bacon: Rowe (ed.), Reading of Francis Bacon, p. 45.

46 Mee, “‘Automatic’ Resulting Trusts”, p. 214, quoting Co. Litt. 23a.

47 Sweet, “‘A Song of Uses.’ Some Reflections and a Moral” (1919) 35 L.Q.R. 127, at p. 128.

48 Ibid., p. 129, referring to Co. Litt. 23a.

49 Sweet, “‘A Song of Uses’”, at p. 128: “It is a common law doctrine, and can only be explained on common law principles.” In referring to common law principles, Sweet seems to have had in mind principles applicable to uses executed by the Statute of Uses.

50 Sweet may have overlooked the effect of the statute 1 Ric. III, c. 1 (1484) in requiring the common law judges to consider uses.

51 Ibid., p. 385 no. 31.

52 Ibid., p. 401 (probably in the Inner Temple).

53 Seemingly meaning a feoffment expressed to be to his own use.

54 Baker (ed.), Reports of Cases in the time of King Henry VIII, vol. 2, p. 449.

55 Ibid., p. 448. For later discussion of this point, see Gilbert, Law of Uses and Trusts, 3rd ed., p. 439 and references there.

56 It may be suggested that the concept of retaining a use was applicable both to situations now conceived as giving rise to “automatic” resulting trusts, and to situations now conceived as giving rise to “presumed” resulting trusts. In both cases the question was whether the settlor had disposed of the use. The point was put in argument in Shortridge v Lamplough (1700) 7 Mod. 71: “If a man at this day make a feoffment in fee to another and his heirs generally, without declaration of use or consideration, it shall be to the use of the feoffor … When one makes a feoffment to particular uses, so much of the use as he does not dispose of remains in him as his old use: and he said that there was no difference when there were particular uses limited and no use at all; for what draws the use out of the feoffor? It is either the consideration, or the expressing it to be to the use of another; and that reason holds in both cases”, per Raymond, at pp. 71–72. Wells on the other side “agreed, that in all sorts of conveyances, if there be not a consideration or use expressed, or necessarily implied, the use shall remain in the conveyancer”: at p. 73.

57 4 Mod. 153, at 154–155 (emphasis in the original).

58 The unexecuted uses were uses upon uses, uses where the feoffees (or trustees) had active duties to perform, and uses of property other than freehold land.

59 Mee, “‘Automatic’ Resulting Trusts”, p. 217.

60 Sanders, Essay on Uses and Trusts, 5th ed., vol. 1, p. 85, referring to Coke's observation in Cowper v Frankline (1616), 3 Bulstrode 184, at 185, that “The statute of 27 Hen. 8 doth only execute old uses, but doth not create any new uses.”

61 Co. Litt. 23a.

62 Co. Litt. 271b, glossing Littleton's observation before the Statute of Uses that “when a feoffment is made to a future use, as to the performance of his last will, the feoffees shall be seised to the use of the feoffor and of his heirs in the meantime”.

63 11 Mod. 181, at 182 (emphasis in the original). See also the same case at 2 Salkeld 590, and 1 Comyns 160. Trevor C.J. referred to Godbold v Freestone (1694) 3 Lev. 406, where a very similar question had arisen in the Common Pleas. The same point had been disputed there in 1535 (see above, at n. 54), but the whole court rejected the suggested difference between the cases: “in both cases the fee remains in the donor, and was never drawn out of him”, 3 Lev. 406, at 407.

64 5 T.R. 104.

65 5 T.R. 104, at p. 105. It was asked whether this applied to copyhold land, and held that it did.

66 A Treatise of Equity, with the addition of marginal references and notes by John Fonblanque, 2 vols. (London 1793–94), vol. 2, 137. The passage which Fonblanque annotated might have been a summary of St German: “For every man that hath lands, hath thereby two things in him; the one the possession of the land, which, in the law of England, is called the freehold; and the other, the authority to take the profits of the land, which is the use.” The Treatise, first published anonymously in 1737, was attributed to Henry Ballow. See M. Macnair, “The Conceptual Basis of Trusts in the Later 17th and Early 18th Centuries”, in Helmholz and Zimmermann (eds.), Itinera Fiduciae, p. 201 n. 9.

67 As Spence put it, “the use, in most cases, remains rather than results” (G. Spence, The Equitable Jurisdiction of the Court of Chancery, vol. 1 (London 1846), 510).

68 The statute was repealed by the Law of Property Act 1925, s. 207 and Sched. 7.

69 Sweet, “‘A Song of Uses’”, at p. 131. From the idea of the use remaining in the grantor, it seemed to follow that “no use can result but to the owner of the estate” (Spence, Equitable Jurisdiction of the Court of Chancery, vol. 1, p. 488). So it was said in argument in Davis v Speed (1698) Shower 104, at 105, that “here was an Use by implication in the Husband; tho' none could result back to the Husband, because he had none before”. It also followed that there might be a difference between a use which “remained” and a use which “returned”, see Pibus v Mitford (1674) 1 Ventris 372, per Twisden J.K.B. at 375–376. From this it was argued that a purchase in the name of another gave rise not to a resulting but to a constructive trust, Spence, Equitable Jurisdiction of the Court of Chancery, vol. 1, pp. 510–511.

70 For discussion of unexecuted uses, see Baker, Oxford History of the Laws of England, vol. 6, pp. 683–686; Jones, “Trusts in England after the Statute of Uses”, pp. 178–181.

71 1 Black. W. 184–185. For Burgess v Wheate, see P. Matthews, “Burgess v Wheate (1759)”, in C. Mitchell and P. Mitchell (eds.), Landmark Cases in Equity (Oxford 2012), ch. 5.

72 W. Preston, An Essay in a Course of Lectures on Abstracts of Title (London 1818), vol. 2, 436; C. Watkins, An Essay on the Law of Descents, 4th ed. by J. Williams (London 1837), 243–244; Gilbert, Law of Uses and Trusts, p. 28.

73 Yale (ed.), Nottingham's ‘Manual’ and ‘Prolegomena’, p. 245.

74 W.H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1 (Selden Soc. 117) (London 2001), 293 no. 146. For an example, see Croft v Evet (1605), Bryson, ed., Cases Concerning Equity and the Courts of Equity, vol. 1, p. 342 no. 124, and references there, and discussion in G.H. Jones, History of the Law of Charity (Cambridge 1969), 82.

75 Per Lord King L.C., in Mansell v Mansell (1732) Cases T. Talbot 252, at 261. For a later example, see Buchanan v Harrison (1861), 1 J. & H. 662, at 668–669, where in argument Rolt Q.C. and Baggallay Q.C. quoted Co. Litt. 23a in relation to “so much of the use as he disposeth not of”, and applied the doctrine of resulting uses to resulting trusts. See also, below, text following n. 84.

76 Ibid., pp. 220–221.

77 Mee, “‘Automatic’ Resulting Trusts”, p. 217.

78 Before 1536 uses were also called trusts, for example in 1522 Fitzherbert J.C.P. observed that “use nest forsque trust et confydens” (“a use is nothing other than a trust and confidence”), Baker (ed.), Year Books of Henry VIII 12–14 Henry VIII 1520–1523, p. 114.

79 “The statute might just as well have been called the Statute of Trusts, or the Statute of Confidences save that in the accustomed phrase the term use came first”, Bordwell, P., “The Conversion of the Use into a Legal Interest”, 21 Iowa Law Review 1, at p. 13 (1935).

80 Sir Robert Brooke, La Graunde Abridgement (London 1573), Feffements al Uses, pl. 52 (1544–45) (emphasis in the original).

81 Yale, ed., Nottingham's ‘Manual’ and ‘Prolegomena’, p. 238.

82 F.W. Maitland, Equity, 2nd ed., by John Brunyate (Cambridge 1936), 38. The point was made in argument in Eure v Howard (1712): a limitation expressed to have been “in trust for” was executed by the Statute of Uses “as absolutely as if it had been said to the use of … for the statute makes no difference between an use and a trust, but mentions them both promiscuously”, Prec. Ch. 338, at 345.

83 1 Black. W, at 180.

84 For further consideration of the application of the rules of uses to trusts after 1536 see Jones, “The Trust Beneficiary's Interest before R. v. Holland (1648)”.

85 D.E.C. Yale (ed.), Lord Nottingham's Chancery Cases, vol. 2 (Selden Soc. 79) (London 1961), 110.

86 Ibid., 88. Though, as Professor Mee suggests, the rules of uses and the rules applied to trusts were not identical, see, for example, ibid., pp. 113–114, discussing Elliot v Elliot (1677) 2 Ch. Cas. 231, Yale (ed.), Nottingham's Chancery Cases, p. 517 no. 690, p. 566, no. 751.

87 Yale (ed.), Nottingham's Chancery Cases, vol. 2, p. 481 no. 643, at p. 484, considered ibid., pp. 110–113, with the observation that while in holding that a voluntary disposition of land raised a presumption of trust resulting to the grantor Nottingham “clearly grounded himself upon the analogy of the use and also arguments of convenience”, “[i]t is equally certain that he did not regard the old law of uses as governing resulting trusts generally; it was merely an initial guide”. For further discussion of Grey's Case see J. Glister, “Grey v Grey (1677)”, in Mitchell and Mitchell (eds.), Landmark Cases in Equity, ch. 3.

88 Henley L.K. went on to refer to Nottingham's dictum in Lord Gray v Lady Gray, quoted immediately above.

89 Yale, D.E.C., “The Revival of Equitable Estates in the Seventeenth Century: An Explanation by Lord Nottingham” [1957] C.L.J. 72, at 83.

90 2 Co. Rep. 56b, at 58b.

91 March N.R. 50. The same point had been made before 1536, see, for example, per Fitzherbert J.C.P. in 1522, note 78 above.

92 Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 303 no. 119–200 (c. 1598–c. 1602).

93 Yale (ed.), Nottingham's ‘Manual’ and ‘Prolegomena’, pp. 236–237 (Prolegomena, ch. 12, ss. 1–3).

94 Nottingham was writing in 1674 (Yale (ed.), Nottingham's ‘Manual’ and ‘Prolegomena’, p. 76).

95 Nottingham was not writing legal history. Removal of uncertainty stemming from the statute 1 Ric. III, c. 1 may have been an element behind the Statute of Uses, but other factors were at play, notably the financial interests of the Crown. The exclusion from the Statute of Uses of uses of leases paralleled, Nottingham argued, the exclusion of such uses from the statute 1 Ric. III, c. 1, though that leases were outside the statute of Richard was not always fully clear, see Jones, “Trusts in England after the Statute of Uses”, pp. 178–179.

96 See, e.g., discussion in Dalamere v Barnard (1567/68), 1 Plowd. 346, at 349 ff.

97 “a mere right to an accounting”: D[urfee], “The Statute of Uses and Active Trusts”, at p. 90.

98 Richard, earl of Clanrickard v Robert Sidney, Viscount Lisle (1615) Hobart 273, at 280, per Sir Henry Hobart C.J.C.P. In the decades after 1536 Chancery pleadings referred to the Statute of Uses as “the statute made … for the uniting of possession to uses”, or “for the transferring of possessions to [or ‘into’] uses”, see Jones, “Trusts in England after the Statute of Uses”, p. 191.

99 Though it was held to be possible for a man to covenant to stand seised of the fee simple to the use of himself and his heirs, and for this use to be executed: Englefield's Case (1591) 7 Co. Rep. 11b at p. 13b.

100 Yale, “Revival of Equitable Estates in the Seventeenth Century”, p. 86; Milsom, Historical Foundations, p. 236.

101 Sir Robert Brooke, La Graunde Abridgement (London 1573), “Feffements al uses”, pl. 52.

102 The National Archives: Public Record Office C 78/113/9.

103 2 Leo. 216. See Milsom, Historical Foundations, p. 238.

104 2 Leo. 216, at 217.

105 Ibid., at p. 218. In other words, upon a conveyance of the fee to A, with a use expressed in favour of B for life, A would be seised to the use of B for life with remainder to the use of the grantor in fee. Wray further supposed that if the reconveyance was not made “within convenient time”, the use “should be revested again in him who suffered the recovery”.

106 Anon. 1559–60, Cambridge University Library MS. Ff.5.4, fo. 43v (dated “2 Eliz”). See also the same point in Bettuan's Case (1575–76) 4 Leo. 22.

107 1 Ves. Sen. 186, at 186.

108 Ibid., at p. 187.

109 Chudleigh's Case (1589–95), 1 Co. Rep. 120a, at 121a–121b; Co. Litt. 272b.

110 F.W. Sanders, An Essay on the Nature and Laws of Uses and Trusts. Including a Treatise on Conveyances at Common Law; and those Deriving their Effect from the Statute of uses (London 1791), 8–9.

111 As it was put in argument in Perrot's Case (1594), “there are three types of limitation of uses, the one where a man reserves the possession and parts with the use, as where he covenants to stand seised upon good consideration, or bargains and sells the land. The second where he parts with the possession and keeps the use, as where he enfeoffs others without consideration, or to the use of himself and his heirs. The third where he gives the possession and also the use to one or divers other people”, Moo. K.B. 368, at 380 (translated).

112 Sanders, Essay on Uses and Trusts (1791), pp. 14–15.

113 Ibid., pp. 16–18. Revisions were made in subsequent editions, but the distinction between uses and trusts continued to appear, see, e.g. F.W. Sanders, An Essay on Uses and Trusts and on the Nature and Operation of Conveyances at Common Law, and of those which Derive their Effect from the Statute of Uses, 5th ed. by G.W. Sanders and J. Warner (London 1844), 2–3.

114 Rowe (ed.), Reading of Francis Bacon, p. 8.

115 Lewin, Treatise of the Law of Trusts, 5th ed., pp. 5–6 (emphasis in the original).

116 Rowe (ed.), Reading of Francis Bacon, p. 45.

117 Except where the trust was created in the form of a use upon a use, as to which see discussion immediately below.

118 The boundary between active and passive might be elusive: “There are many difficult cases of interpretation where active and passive duties are run together, e.g., a trust to pay rent to A or to permit him to take the rents”: Yale, “Revival of Equitable Estates”, p. 83 n. 36. See further Maitland, Equity, pp. 38–41.

119 This seems to mean a limitation to A and B, to the use of A, B, C and D and their heirs, in trust for the settlor: Yale (ed.), “Revival of Equitable Estates”, p. 80 n. 30.

120 Yale, ed., Nottingham's ‘Manual’ and ‘Prolegomena’, p. 237.

121 Ibid., p. 238.

122 6 B. & C. 305 (an earlier stage is reported at 2 Car. & P. 440).

123 Comberbach 312, at 313.

124 Because the limitation of the use was different from the estate of the land, “as where a man makes a feoffment to certain trustees and their heirs, to the use of them and their heirs in trust for J.S. this trust is executed by the statute”, ibid., at p. 313.

125 Ibid.

126 6 B. & C. 305, at 314–315, referring to Meredith v Joans (1631) Cro. Car. 244. See also sub nom. Jenkins v Young, Cro. Car. 230, and Jones W., 254. In similar vein, Holroyd J.K.B. observed that though the trustees took seisin by the common law, “yet they take that seisin to the use of themselves … They are, therefore, seised in trust for another, and the legal estate remains in them”, 6 B. & C. 305, at 316, and Littledale J. said that while it was true that the trustees took the estate by the common law, they took it “coupled with the use”, ibid., at 317. Professor Mee suggests that the difference between a use and a passive trust in the form of a use upon a use “appears a rather subtle one” in the case of “bare” trusts (Mee, “Resulting Trusts and Voluntary Conveyances of Land”, p. 291 n. 29). This is no doubt in some senses true: the beneficiary of a bare trust is in practical terms in a position closely analogous to that of the beneficiary of a pre-Statute of Uses passive use. But after 1536 if a bare trust of freehold land was to exist unexecuted, it must have been in the form of a use upon a use, with the result that it would be impossible to conceive of the settlor-beneficiary of a bare resulting trust as having retained his old use. The question, as indicated below, then becomes whether he may be conceived as having retained something else.

127 Sanders, Essay on Uses and Trusts, 5th ed., pp. 89–91. The reference to not having the “use which the statute requires” is presumably to absence of seisin to the use of another, which the Statute of Uses required. As Bacon put it “every man was seised to his own use, as well as to the use of others: therefore because the statute [of uses] would not stir nor turmoil possessions settled at the common law, it puts in precisely this word ‘other’, meaning the divided use and not the conjoined use”, Rowe, ed., Reading of Francis Bacon, p. 45.

128 Limitations in the form of a use upon a use became common, if not standard, practice, occurring not only in passive arrangements, but also in active trusts of freehold. The form's commonness appears in Lord Hardwicke's assertion in Hopkins v Hopkins (1738) 1 Atk. 581, at 591, that in consequence of trusts in the form of a use upon a use (Hardwicke's example being a “limitation to A. and his heirs, to the use of B. and his heirs, upon trust for D.”), the Statute of Uses had had “no other effect than to add at most, three words to a conveyance”. For a suggestion that the use upon a use form “early became generalised”, see Jones, “Use upon a Use in Equity Revisited”, pp. 77 ff.

129 I am grateful to one of the anonymous referees, and to Dr Peter Turner, for a number of case references in this section.

130 1 Leo. 194 at 197, in Exchequer Chamber.

131 1 Black. W, 123, at 185.

132 9 Mod. 181, at 186 (emphasis in the original).

133 4 Drew. 587, at 593 (emphasis in the original).

134 (1885) 31 Ch. D. 282, at 286. See also Holroyd v Marshall (1862) 10 HLC 191 at 209, and Rose v Watson (1864) 10 HLC 672, at 678, where Lord Westbury L.C. spoke of specifically enforceable contracts as passing “the beneficial interest”, or as passing ownership “in equity”.

135 2 Doug. K.B. 771. For subsequent cases see K. Gray and S.F. Gray, Elements of Land Law, 5th ed. (Oxford 2008), para. 8.1.61.

136 Goodright v Wells (1781) 2 Doug. 771, at 778, per Lord Mansfield C.J.K.B.

137 Chambers, Resulting Trusts, p. 52. And see ibid., p. 54: “The settlor's interest as beneficiary of the resulting trust is a new interest which did not exist before the transfer of property to the trustees.”

138 Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 293 no. 146. Mr. Yale observed that “the general proposition of resulting trusts bears upon it the mark of the law of uses”, Yale (ed.), Nottingham's Chancery Cases, vol. 2, p. 112.

139 Yale, “Revival of Equitable Estates”, p. 83.

140 Ibid.

141 Lewin, Treatise of the Law of Trusts, 5th ed., pp. 8–9.

142 See, e.g., Lord Upjohn's observation in Vandervell v IRC [1967] 2 A.C. 291 at 313, that “if the beneficial interest was in A and he fails to give it away effectively to another or others or on charitable trusts it must remain in him”. For the suggestion that “overtones of the Statute of Uses” may be seen in Upjohn J.'s judgment in Grey v Inland Revenue Commissioners [1958] 3 Ch. 375 at 382, see Turner, P.G., “The High Court of Australia on Contracts to Assign Equitable Rights” [2006] Conveyancer 390, at 392.

143 Attempts to provide a rationale have, of course, been made, by Professor Mee and Professor Chambers among others. Discussion of these attempts is beyond the scope of this article. See also Professor Penner's suggestion that the difficulty is caused by a “very theoretical objection to the concept of ‘beneficial title’” (original emphasis), and might be overcome by recognising “a continuing beneficial interest in property even though the legal structure under which it is held changes” (James Penner, “Resulting Trusts and Unjust Enrichment: Three Controversies”, in Mitchell (ed.), Constructive and Resulting Trusts, p. 237, at p. 262), which seems to be a suggestion that a right analogous to an “old trust” might be recognised in the modern law. Since the repeal of the Statute of Uses in 1925, uses in the sense discussed in this article have largely fallen from view outside the context of legal history. But they have not been abolished, and arguably still exist. The doctrine of the “old use” might thus have scope to operate in the modern law in the form of a trust, though only to the extent that modern trusts are not active (cf. the view that “all modern trusts are active”, Milsom, Historical Foundations, p. 236).

An earlier version of this paper was presented at a seminar organised by the Cambridge Centre for Private Law in November 2012. I am grateful to those attending for their comments, and to the anonymous referees for their very valuable suggestions. Remaining shortcomings are my own.

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