the defendants (they were Popham, afterwards Chief Justice of King's Bench, Cowper, and Lord Coke, all men of distinguished eminence, and unquestionably at the head of the profession)—after observing that the scope of the statute of 1 Rich. III. was to authorize cestui que use to enter and make a feoffment, that the feoffees often defeated the end of this statute by subtle and cunning practices; he drew the conclusion, that to take away all the power and means of deceiving by the feoffees, the statute of 27 Hen. VIII. was made; and therefore it was holden to be the better opinion at that time (23 Eliz.) that for the raising of future uses after the statute, the regress of the feoffees was not requisite, and that they had not power to bar these future uses; for the statute had transferred all the estate out of them. And, agreeable to these deductions and authorities, the construction (p) of the statute is, that the whole estate limited to the trustees to serve the uses, shall become an estate or interest in the land, subject to those qualifications and conditions, to which the estate, arising from the úse, had it been originally an estate in the land, would have been subject; with this exception, however: the person who, at the common law, would have had only a possibility of reversion, will, by resulting use and the execution of that use into estate, have the estate of the reversion, and it will execute in him quodam modo, so as (p) Pollexf. 383. 395.

to be vested, suspended, removed, and to attach again precisely in the same manner, and under the same qualifications as the Court of Chancery, when uses were fiduciary, decreed the property of the reversion to the person who had made the conveyance to uses, and had disposed of the fee on a contingency. This case, beyond all other cases, and especially in conjunction and with the aid of other cases, tends strongly to prove the positions which have been advanced in the interpretation of the statute of 27 Hen. VIII. It favours the opinion, that the estate. in the land executes to the estate in the use, in respect of the estate, and not of the person. This was the opinion of Manwood; for after stating the language of the statute in enacting, that every person that hath, or hereafter shall have, any use, &c. he concluded from these words, that the statute not only provided for those persons who were in esse, at the time of the act, but for all other persons who might

have of the said uses or trusts.

any

From the instant, then, that a conveyance is made to uses, the statute operates on the limitations of the use; and the interest and all the estate of the trustees, as far as they claim merely by the conveyance to serve the uses, ceases to exist; and the trustees are and will continue to be no otherwise concerned in the land, in respect of the legal estate, which was conveyed to them to serve the uses, than if no conveyance had ever been made to them;

or than if, after taking the conveyance, they had transferred the estate to persons who had the capacity of enjoying the land at present or in future (q). Indeed, the most correct notion which can possibly be obtained of the operation or effect of the Statute of Uses, on the subject of the execution of the seisin or estate to the use, and particularly with a view to this much controverted point, may be formed, by supposing a conveyance to uses, and that the feoffees to uses make a conveyance to those persons to whom, on the conveyance to the feoffees, the use is limited, whether those persons be in esse or in posse; and to whom it would result according to the rules of courts of equity, in those instances in which there was not any present or effectual disposition of the use of the fee.

The fourth section of this statute is applicable to rents, and has prescribed this very construction, and materially strengthens the argument.

The language of the statute is, " And whereas also divers persons stand and be seised of and in any lands, tenements or hereditaments in fee-simple or otherwise, to the use and intent that some other person or persons shall have and perceive yearly to them, and to his or their heirs, one annual rent of X li. or more or less, out of the same lands and tenements; and some

(9) Bacon on Uses, 45.

other person one other annual rent to him and his assigns, for term of life or years, or for some other special time, according to such intent and use as hath been heretofore declared limited and made thereof;

"Be it therefore enacted, by the authority aforesaid, that in every such case the same persons, their heirs and assigns, that have such use and interest, to have and perceive any such annual rents out of any lands, tenements or hereditaments, that they and every of them, their heirs and assigns, be adjudged and deemed to be in possession and seisin of the same rent, of and in such like estate as they had in the title, interest, or use of the said rent or profit, and as if a sufficient grant or other lawful conveyance had been made and executed to them, by such as were or shall be seised to the use or intent of any such rent to be had, made or paid according to the very trust and intent thereof; and that all and every such person and persons as have or hereafter shall have any title, use and interest in or to any such rent or profit, shall lawfully distrain for nonpayment of the said rent, and in their own names make avowries, or by their bailiffs or servants make cognizances and justifications, and have all other suits, entries and remedies for such rents, as if the same rents had been actually and really granted to them, with sufficient clauses of distress, re-entry or otherwise, according to such

conditions, pains or other things limited and appointed upon the trust and intent, for payment or surety of such rent."

Between a conveyance from the feoffees to the cestuis que use and the execution of the use into estate by virtue of the statute for transferring uses into possession (r), various differences

exist.

They arise out of the spirit, and are enforced and enjoined by the language of the statute. One of the differences is,

1st, The possibility of reversion, if there be any, will be in the person who makes the conveyance originally to uses, instead of the feoffees in whom it would remain on a reconveyance.

2dly, The interest, which under the operation of the statute, is an estate when the use of the fee is limited in contingency, would, under a conveyance of the legal estate, be merely a possibility.

Thus, when lands are limited by a conveyance at common law, to A for life, remainder to the heirs of B, who is living, the fee will pass out of the person who makes the conveyance.

No estate will remain in him. He will retain the mere possibility of having the fee as a vested interest, when it shall be certain that the fee cannot vest in the person to whom the same is limited.

Mr. Fearne has doubted on this point, or (r) 27 Hen. VIII. c. 10.