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					                                          Chapter 9

                            Contingent and Vested Remainders


                         I. Understanding Vested and Contingent

       We learned about remainders when we studied life estates and fee tails. A
remainder is a future interest which was transferred to a grantee, as distinguished from a
reversion which is a future interest retained by a grantor. A remainder becomes
possessory upon the natural termination of the prior estate rather than upon the
occurrence of a condition.

       A life estate comes to a natural end when the measuring life ends. A fee tail
comes to a natural end when the grantee's blood line runs out and that was considered
certain to happen in medieval times given the state of medical arts and the existence of
plague. So if a grantee had a future interest which followed a life estate or a fee tail, it
was called a remainder. (Of course, if the grantor had retained the interest after a life
estate or a fee tail, it would be a reversion.)

        Contingent means that the interest is uncertain. If a remainder is contingent,
some condition must first be satisfied or violated before it is certain that the remainder will
ever become possessory. The term vested is used to distinguish those remainders
which were not contingent. A vested interest is certain. No condition must first be
satisfied or violated before a vested remainder could become possessory.

        The most common contingency is identification of the remainderman, i.e., the
living person who owns the remainder. Until the remainderman could be identified, the
remainder could not be vested, i.e., unconditional. However, once the condition was
satisfied or the remainderman identified then the remainder became vested.

Questions:

1.     A, the owner of land in fee simple absolute, conveys by feoffment "to B for life and
       then to C and his heirs." Is C's remainder contingent or vested?

Answer:

       C's remainder is vested. We know who the remainderman is because C is a
       named person. Furthermore, there are no conditions which must be satisfied
       before C's future interest can become possessory. All that must happen is for the
       previous life estate to come to a natural end. That will happen when B dies.
       Even if C should die before B, that would not affect the outcome because C's
       remainder, regardless of who owns it after C's death, will still become possessory
       right on schedule.
2.   A, the owner of land in fee simple absolute, conveys it by feoffment to "B for life
     and then to C and her heirs if C finishes law school." C has not yet completed law
     school. Is C's remainder contingent or vested?

Answer:

     C's remainder is contingent. Although C is identified, there is still a condition
     which must be satisfied before C's remainder can vest, i.e., C must finish law
     school and C might not do that. If C does not finish law school, she would not be
     entitled to possession of this land, even when the preceding life estate has ended.
     That is what makes this remainder contingent.

3.   A, the owner of land in fee simple absolute, enfeoffs "B for life and then to C and
     her heirs if C graduates from law school and, if C does not graduate, then to D and
     his heirs." C has not yet graduated. Are C's and D's remainder's contingent or
     vested?

Answer:

     Before C's remainder can vest, C must graduate from law school. So C's
     remainder is contingent.
             D's remainder (it is a remainder because it must follow immediately after B's
     life estate) cannot vest unless C fails to graduate. So D's remainder is also
     contingent. These two remainders are set up to be alternatives, either C or D
     taking, so they are called alternative contingent remainders.

4.   C, in question 3 above, has just graduated from law school. Now does C have
     now?

Answer:

     C's remainder vested the moment that C graduated from law school. Then C had
     a vested remainder in fee simple absolute. C's vested remainder would be an
     inheritable and transferrable estate. C could convey that future interest to another
     person. When C died, that future interest would be inherited by C's heir. So
     even if C died before B, that remainder would still be the future interest which
     provided its owner with fee simple absolute the moment B died. Whoever then
     owned the remainder would have the fee simple absolute.



5.   A, the owner of land in fee simple absolute, enfeoffs "B for life and then to C for life
     if C graduates from law school, and then to D and his heirs." Are C's and D's
     remainders contingent or vested?
Answer:

       C's remainder is contingent upon C graduating from law school. So C has a
       contingent remainder, but note that C's contingent remainder is in a life estate.
               D's remainder will follow C's life estate or it will follow B's life estate if C does
       not graduate. There is no doubt that D's remainder will become possessory in the
       future, the only question is when, after B's death or C's. So D's remainder is not
       contingent. It is vested.



                          II. Destruction by Failing to Vest In Time

       The distinction between a vested and a contingent remainder was very important
because of the technical rules regarding seisin. There could be no gap in seisin. If the
previous freehold (e.g., a life estate or fee tail) ended and the remainder had not yet
vested, who would get the seisin? If there was no one to take the seisin, then the entire
estate would escheat to the lord, so the rule evolved that seisin would immediately pass to
the person holding the next vested interest.

        The remainder which had failed to vest before the freehold preceding it ended
would be skipped over. Once seisin had passed to a person farther down the time axis,
it was destroyed. And it was destroyed forever because seisin could not later shift or
spring back to that remainderman, even if the contingency was later eliminated, because
seisin is prohibited from springing and shifting. (You will learn more about springing and
shifting in Chapter 11.)

       This may be easier to understand with reference to the graphs. Let us take an
example. If O was the owner of land in fee simple absolute and she conveyed by
feoffment to "P for her life, and then to Q for her life, if Q has graduated from high school,
and then to R for her life, if R has graduated from high school, and then to S and her heirs,
if S has graduated from high school." Q, R and S have not yet graduated. By analyzing
the terms of this conveyance we would quickly determine that P has a life estate, followed
by Q's contingent remainder in a life estate, followed by R's contingent remainder in a life
estate, followed by S's contingent remainder in fee simple absolute.




                                                60
       Graphically, their interests would show that the fee simple absolute would be
divided as follows:

                          **************************************
                                    in these diagrams:
                                    "f.s.a." means "fee simple absolute"                   *
                                    "c.r." means "contingent remainder"
                                    "v.r." means "vested remainder"
                                    "l.e." means "life estate"
      Power                 **************************************
       
        ║
 100% ║──────┬───────┬──────┬───────────┐
        ║ P's  │ Q's       │ R's    │ S's            │
        ║ life │ c.r.      │ c.r.    │ c.r.          │
        ║      │in l.e.    │ in l.e │ in f.s.a.      │
    0% ╚══════╪═══════╪══════╪═══════════╧════> Time
                                                   
         the           P's          Q's           R's
conveyance     death         death          death

       P, having a freehold, holds seisin. When P dies, seisin must immediately pass to
the person with the next vested interest in a freehold. Looking at the graph, we follow the
time axis to see what interest comes next. At the moment of P's death, the next interest
on the time axis is Q's. But Q's interest has not yet vested. Q has not yet graduated.
Seisin cannot wait in limbo until Q does graduate. There can be no gap in seisin. So we
must continue on down the time axis. Having bypassed Q's contingent remainder, it is
destroyed. Consequently, Q now has nothing.

      Continuing down the time axis, the next interest is R's contingent remainder. This
one too is destroyed because it has not vested in time. Seisin must vest immediately in
someone, so we must continue on down the time axis.

        S's contingent remainder has not vested in time either. So it is destroyed. But
that means that all the remainders would be destroyed. So who gets the seisin? If
there is no one to hold the seisin, i.e., the estate has become vacant, then the estate must
escheat to the lord. Since the grantor, O, would not reasonably have intended that (why
make a gift of this valuable interest to his lord?), O must have intended to retain a
reversion which was to become possessory if all the contingent remainders were
destroyed.

       That means we should modify the diagram to reflect O's reversion. Then it would
explain why O's reversion is the vested future interest which most closely follows P's life
estate. It is important to note that reversions, even the one here, are always considered

                                            61
to be vested interests even if they were not certain to become possessory.
       The modified diagram should look like this:


      Power
        
        ║
 100% ║──────┬───────┬──────┬────────────────────┐
        ║ P's   │ Q's │ R's        │ S's c.r. in f.s.a. │
        ║ life  │ c.r.   │c.r.     │ or                 │
        ║       │in l.e. │in l.e    │ O's reversion     │
   0% ╚══════╪═══════╪══════╪════════════════════╧══>Time
                                                      
          the        P's          Q's             R's
 conveyance    death     death       death



       The technical rules about seisin are the cause of contingent remainders being
destructible. So logically, only contingent remainders involving seisin (i.e., freeholds)
should be subject to destruction. However, the rule was expanded to include remainders
which did not involve seisin, particularly equitable remainders, even though there seems
to be no logical basis for that expansion. We have not yet learned about equitable
interests, but we will shortly. So keep the rule that contingent remainders in mind even
when we learn about interests in equity.


Questions:

1.    G was the owner of land in fee simple absolute. By feoffment, he conveyed a life
      estate to H, followed by a contingent remainder in a life estate to I, followed by a
      vested remainder in a life estate to J, followed by a contingent remainder in a life
      estate to K and, finally, followed by a vested remainder in fee simple absolute to L.
      H died before any of the contingent remainders had vested. Who now has the
      present possessory estate?

Answer:

      The conveyance transferred a present possessory freehold interest to H, a life
      estate. When H died, his life estate ended. Seisin would have to pass to the one
      holding the next vested freehold interest. I, J, K and L all have future interests, so
      we should look at the order in which these are to become possessory and
      determine which is the next vested freehold interest.


                                            62
           In doing this, the diagram is a helpful tool. On the diagram, the interests
     created by this conveyance would look like this:

     Power
       
 100% ║
       ╟──────┬─────────┬─────────┬─────────┬───────────┐
       ║ H's   │ I's c.r. │ J's v.r. │ K's c.r. │ L's v.r. │
       ║life   │ in a     │ in a     │ in a     │ in       │
       ║estate │ l.e.      l.e.      │ l.e.     │ f.s.a.   │
       ╚══════╧═════════╧═════════╧═════════╧═══════════╧═> Time
                                                          
      the
     conveyance

     When H's life estate ended, seisin would pass to the next vested freehold interest
     in time. Moving down the time axis, the first interest after H's life estate would be
     I's contingent remainder in a life estate. This is a future interest in a freehold, but
     it is not a vested interest. Seisin cannot be held in abeyance waiting to see if I's
     remainder will ever vest. That would cause an impermissible gap in seisin. So
     we must continue down the time axis to find the next vested freehold interest.
     Since seisin has passed I, it could never spring or shift back in time to her. So I's
     contingent remainder has been destroyed.
             Continuing down the time axis, we next come to J's vested remainder in a
     life estate. J could hold the seisin because J's remainder has vested. So we
     have now reached the time in the future for J's interest to become a present
     possessory interest. At this moment, H's life estate and I's contingent remainder
     are in the past, so the fee simple absolute would be divided as follows:


     Power
      
       ║
 100% ║───────┬───────┬─────────────────┐
      ║ J's     │K's     │L's              │
      ║ life    │c. r in │v.r. in f.s.a.   │
      ║ estate │ l.e.    │                 │
   0% ╚═══════╧═══════╧═════════════════╧════> Time
      now                                
      i.e.,
      after
      H's death

2.   Using the same facts as question 1 above. If J had died prior to H, who would

                                           63
     have the present possessory interest?
Answer:

      If J had died prior to H, it would have made a significant difference. Let's first look
      at the diagram which we made of the interests created by the conveyance. It
      looked like this:


    Power
      
      ║
100% ║
      ╟──────┬─────────┬─────────┬─────────┬───────────┐
      ║ H's    │ I's c.r. │ J's v.r. │ K's c.r. │ L's v.r.  │
      ║life    │ in a      │ in a    │ in a     │ in       │
      ║estate │ l.e.      │ l.e.     │ l.e.     │ f.s.a.   │
      ╚══════╧═════════╧═════════╧═════════╧═══════════╧═> Time
                                                           
     the
    conveyance


      J had a vested remainder in a life estate. The moment that J died, that life estate
      ended. J then had a vested remainder in nothing. That amounts to nothing, so
      now J has nothing. The diagram would have to be modified to show that J no
      longer has any interest. Now it looks like this:


    Power
    
100% ║───────┬───────┬────────┬─────────────┐
       ║ H's    │ I's     │ K's     │ L's     │
       ║ life   │ c.r. in │ c.r. in │ v.r. in │
       ║ estate │ a l.e. │ a l.e.   │ f.s.a.  │
 0%    ╚═══════╧═══════╧════════╧═════════════╧══> Time
    now                                            
    i.e., after
    J's death

      When H later died, it is clear that the next vested freehold interest in time would be
      L's vested remainder in fee simple absolute. Consequently, seisin would pass to
      L and L would have the fee simple absolute. The contingent remainders which
      had been passed on the time axis, I's and K's, would have been destroyed, leaving
      I and K with nothing.

                                            64
3.   A, the owner of the land in fee simple, conveyed by feoffment "to B for life and then
     to C and her heirs if C has reached the age of 21." B died while C was only 19.
     Who owns the property?

Answer:

     A intended to transfer a life estate to B as evidenced by the words of limitation
     which A used to describe it ("for life"). A life estate is a freehold, which means it
     involves seisin, and A used the proper method to transfer seisin (a feoffment). So
     B received a life estate.
            C received a remainder because it immediately follows a life estate. It is a
     remainder in a fee simple absolute because the words of inheritance and limitation
     ("and her heirs") intended that A intended that it be a remainder in fee simple
     absolute. But C must turn 21, and that might never happen. Because a
     condition must first be satisfied, C' remainder is contingent. So C has a
     contingent remainder in a fee simple absolute.
            When B died, seisin had to immediately pass to the next vested interest.
     C's remainder was still contingent, so it was destroyed. If there was no one to
     hold seisin, then the entire estate would escheat to the lord. That could not be
     what A intended, so A must have intended to keep a reversion. The reversion
     would be the next vested interest so seisin would pass to A. When B died and C's
     contingent remainder was destroyed, A's future interest (her reversion)
     immediately ripened into a present estate, a fee simple absolute.
            Since C's remainder was destroyed, she has nothing. B's life estate
     ended, so B no longer had anything.


4.   A, the owner of land in fee simple absolute, conveyed by feoffment "to B and the
     heirs of her body and then to C and his heirs but only if C is still alive." C died and
     his heirs want to know if they have any interest. Do they?

Answer:

             It is clear that A intended that B receive a fee tail from the words of
     inheritance and limitation used ("and the heirs of her body"). This is a freehold,
     involving seisin, and A used the proper method to transfer seisin, a feoffment. So
     B received a fee tail.
             C 's interest immediately followed a fee tail, so it would be a remainder. A
     intended that it be inheritable and last infinitely long, i.e., that it be a remainder in
     fee simple absolute, based upon the words of inheritance and limitation which A
     used ("and her heirs"). But, a condition must be met before C can take. He must
     be still be alive when B's entire family blood line is extinguished. So, C has
     received a contingent remainder in fee simple absolute.

                                            65
            When C died before B's family blood line ran out, it became impossible for
     the condition to be satisfied. The contingent remainder is not technically
     destroyed, as we have used the word above, but the effect is the same. So C's
     heirs have inherited no interest in this land upon C's death.

5.   A, the owner of land in fee simple absolute, conveyed by feoffment "to B for life and
     then to C's heir and her heirs." B died while C was still alive. What do B, C and
     C's heir own?

Answer:

     A intended that B receive a life estate, based upon the words of limitation which A
     used ("for life"). A life estate is a freehold, which involves seisin, and A used the
     proper method to transfer seisin, a feoffment. So B received a life estate.
             A intended that C's heir receive a fee simple absolute based upon the words
     of inheritance and limitation ("and her heirs") which she used. Note that the
     intended grantee is not C, but is "C's heir." C has received nothing under this
     conveyance.
             This fee simple absolute does not become possessory until after B's life
     estate, so it is a future interest called a remainder. C's heir has a contingent
     remainder because there is no way to determine who is C's heir until C dies,
     whenever that might be.
             Remember that an heir is the one who will inherit the land and in order to
     inherit one must outlive the landowner. So it is possible to figure out who might,
     and even who probably will, inherit C's land, but it will be impossible to tell for sure
     until C dies. So C's heir received a contingent remainder in fee simple absolute.
             When B died before C did, there would be no way to know for certain which
     of C's relative should get the seisin, so it must pass to the next vested interest.
     That must be the grantor's reversion, so A now has a fee simple absolute.
             B's heir's contingent remainder has been destroyed, so even after B has
     died and her heir determined, that person will get nothing.




                                           66
                                 III. Destruction by Merger

       Merger is the doctrine by which two small interests in land combine into a larger
interest if held by the same person and the two interests were not separated by something
indestructible. An example will help make this clear. X owned the fee simple absolute.
She conveyed a life estate to Y, but retained the reversion. The fee simple absolute has
now been divided into two parts, the life estate and the reversion. If X later conveyed the
reversion to Y, then Y would have both parts, and they would merge into the fee simple
absolute.

        The rule evolved that when merger occurred, the lesser part would merge into the
greater. In our example, Y had obtained the life estate and the reversion. The
reversion is much larger than the life estate. The life estate could only last for the life of
one human, Y. In contrast, the reversion would last infinitely long. It would last not just
one lifetime, but an infinite number of lifetimes. So the life estate would merge into the
reversion.

       The fact that the lesser merges into the greater does not seem particularly
important until the doctrine of merger becomes involved with contingent remainders.
Since contingent remainders were destructible, they could be destroyed by merger if the
lesser interest merged into a greater interest further down the time axis than the
contingent remainder because seisin could never spring or shift back in time to a
bypassed contingent remainder.

       An illustration will help clarify this. C owned the fee simple absolute. By
feoffment, C conveyed a life estate to D, followed by a contingent remainder in a life
estate to E. C kept a reversion which consisted of what that part of the fee simple after
the conveyance. On the diagram, the parties interests would look like this:



      Power       "c.r." means "contingent remainder"*
                  *****************************************
        ║
 100% ║────────┬───────────┬───────────────┐
        ║ D's    │ E's c.r.          │C's reversion           │
        ║ life   │ in a life         │                        │
        ║ estate │ estate            │                        │
   0% ╚════════╧═══════════╧═══════════════╧════> Time
                                                            
     the
 conveyance

       If C were now to convey that reversion to D, then D would have both the present

                                             67
life estate and the reversion, as shown in the diagram below:

     Power
      
       ║
 100% ║────────┬──────────┬───────────────┐
      ║ D's       │ E's c.r.  │D's reversion   │
      ║ life      │ in a life │                │
      ║ estate    │ estate    │                │
   0% ╚════════╧══════════╧═══════════════╧════> Time
      now                                    
      i.e.,
      after C conveyed
      her reversion to D

Those two interests could merge. The lesser, the life estate, will merge into the greater,
the reversion. That means seisin has progressed down the time axis past E. Seisin can
never shift back to E, so E's contingent remainder has been destroyed, leaving E with
nothing.

      Merger, however, was considered to be a product of the intent of the parties.
Merger occurred because the because the grantor and the grantee intended that it
happen. Where the parties failed to express their intent as to merger, it was presumed
that merger was intended if merger was in the grantee's best interest.

        It is, however, unlikely that a grantor intend to destroy a contingent remainder
which he has just gone to the trouble of creating. If a grantor had simultaneously created
a contingent remainder and the two other interests which had the potential for merging,
the grantor probably did not intend that such merger occur if it would destroy the
contingent remainder. So a rule, based upon the grantor's probable intent, evolved that
if the possible merger situation and the contingent remainder, which would be destroyed
by the merger had been created simultaneously by one conveyance, then the merger
would not occur. This is often expressed by saying that if all the interests were created
simultaneously, then no merger would occur so as to destroy a contingent remainder.

Questions:

1.    By feoffment, A, the owner of fee simple absolute, conveyed a life estate to B,
      followed by a contingent remainder in a life estate to C, followed by a vested
      remainder in fee simple absolute to D. A has retained nothing. Does a merger
      occur here?

Answer:


                                           68
     No. No person has two interests which merge. On the diagram, the interests
     would look like this:

      Power
        
        ║
 100% ║────────┬───────────┬────────────┐
        ║ B's    │C's cont.   │D's vested │
        ║ life   │rem. in     │rem. in     │
        ║ estate │life estate │ f.s.a.    │
    0% ╚════════╧═══════════╧════════════╧════> Time
        the                             
  conveyance       B's death  C's death



2.   B, in question 1 above, conveyed his life estate by feoffment to D. Does a merger
     occur here?

Answer:

     Yes. D now has B's present life estate (so owned by D it is a life estate pur autre
     vie) and the vested remainder in fee simple absolute. These were not separated
     by anything indestructible and both interests were not transferred to D (i.e.,
     created) simultaneously. So these two interests could merge.

3.   What is the effect of the merger which occurred in question 2 above?

Answer:

     When D's life estate merged into her remainder in fee simple (the lesser merging
     into the greater), D got a fee simple absolute. C's contingent remainder was
     destroyed, leaving C with nothing.

4.   By feoffment, D, the owner of land in fee simple absolute, conveyed a life estate to
     E, followed by a vested remainder a life estate to F, followed by a vested remainder
     in fee simple absolute to G. Later, E conveyed her life estate to G. Does a
     merger occur here?

Answer:

     No. G does have a life estate and a vested remainder in fee simple absolute, but
     these are separated by a vested remainder. Vested remainders are not
     destructible, only contingent ones are. The separation will be more obvious if we

                                          69
     refer to the diagram. After the conveyance of the life estate to G, the interests
     looked like this:

      Power
       
        ║
 100% ║────────────────┬────────────┬──────────────┐
       ║ G's              │F's vested  │G's         │
       ║ life estate      │rem. in a   │vested rem  │
       ║ pur autre vie    │life estate │in f.s.a.   │
   0% ╚════════════════╧════════════╧══════════════╧══> Time
       E's                                          
conveyance to G        E's death          F's death


     It is now easy to see that F's vested remainder separates G's two interests. That
     vested remainder is indestructible. So G's two interest cannot merge.


Answer:

5.   H owned fee simple absolute. By feoffment, she conveyed a life estate to I,
     followed by a contingent remainder in a life estate to J, followed by a vested
     remainder in fee simple absolute to I. Does a merger occur here?


Answer:

     I does have two interests which are separated only by a destructible contingent
     remainder. But merger occurs only if that is what the parties intended. Why
     would H have conveyed a contingent remainder to J if she intended that it be
     immediately destroyed by merger. That would not make sense. H, the grantor,
     must have intended that merger not occur here, so it doesn't.

6.   I, from question 5 above, later conveyed by feoffment her life estate and her vested
     remainder in fee simple absolute to K. Nothing was said in the conveyance
     concerning merger. Does a merger occur here?

Answer:

     Whether merger occurs depends on the intent of the parties. Here, the parties are
     I and K. Since I did not create J's contingent remainder, there is no reason to
     believe that I intended to prevent it from being destroyed by merger. It certainly is
     in the best interest of the grantee to have merger occur because that would give

                                          70
       the grantee the entire fee simple absolute, so the intent that merger occur would be
       presumed. Following the merger, K would have fee simple absolute and J would
       have nothing since her contingent remainder had been destroyed.

                            IV. Vested Subject to Divestment
        Clever lawyers avoided conveyances with contingent remainders because they
were destructible. However, landowners wanted to provide conditions which would
determine who would get the land. One of the methods which developed was to design
the remainder so that it was vested, but subject to divestment. Vested remainders were
not destructible, even those which were subject to divestment. Distinguishing between a
contingent remainder and a vested remainder which is subject to divestment can be
tricky.

        By definition, contingent means that the interest is uncertain, i.e., some condition
must first be satisfied or violated before it is certain that the remainder will ever become
possessory. A remainder is vested if no condition must happen first before the interest
can become possessory. By drafting the condition, so that the remainder would
definitely become possessory unless a particular event occurred, the remainder fit the
definition of vested, but that vested interest could later be divested.

       For example, if a landowner wanted the remainder to pass to his son but wanted to
condition the conveyance on the son having a child, he could word the conveyance
"...and then to my son if he has had a child." Because the son would have to have the
child first, before his interest could become possessory, the remainder would be
contingent.

       But, by changing the wording, the remainder could be vested subject divestment.
The critical point is to avoid the requirement that something must happen before the
interest can become possessory. If it were worded "...and then to my son, unless he
should fail to have a child." Under this wording, nothing must happen before the son can
get the possessory interest, but some later event (i.e., failing to have a child) may divest
the son of the interest.

        The distinction may seem foolish unless you keep the purpose in mind. The point
of drafting a remainder to be vested subject to divestment was to avoid the destructibility
of contingent remainders. The destruction of a contingent remainder would deprive the
grantee of the interest which she was supposed to get, and all because of the technical
rule about seisin. Judges were often willing to accept any means, however tenuous, to
avoid a remainder's destruction. That trend has, in fact, led to the abolishment of
destructibility of contingent remainders in much of the United States

Questions:

1.     By feoffment, the owner of fee simple absolute conveyed her land "to A for life and
       then to B if she has remained sober." Is B's remainder contingent or vested

                                            71
     subject to divestment?


Answer:

     It is contingent. B will not get the possessory interest unless she first remains
     sober from the moment of the conveyance until A's death.

2.   By feoffment, the owner of fee simple absolute conveyed her land "to C for life and
     then to D unless D gets drunk first." Is D's remainder contingent or vested subject
     to divestment?


Answer:

     Vested subject to divestment. As things stand at the moment of the conveyance,
     she will get the possessory interest unless she subsequently violates the
     condition. So at the moment of the conveyance it was vested, but the subsequent
     events could cause it to become divested.

3.   If D in question 2 above were to get drunk, what would she have?


Answer:

     Her vested remainder divested when she got drunk. There is no way that it could
     ever vest again, so she has nothing.

4.   Which of the following will give F a vested remainder which is subject to
     divestment?

            (a) "...and then to F if F has graduated from college."

            (b) "...and then to F unless F has failed to graduate from college."


Answer:

     (b) is vested subject to divestment. In (b) the remainder is not subject to a
     condition which must first be satisfied. So it is vested. F will get the possessory
     interest unless something subsequently happens. That subsequent event could
     cause the vested remainder to become divested.
             In contrast, (a) provides that F will get the possessory interest only if she
     first graduates from college. That may or may not happen, so the remainder is
     contingent.

                                          72
                                         Chapter 10

                                      Quia Emptores


       By the second half of the 13th Century A.D., the great lords of the Kingdom were
complaining that they were being cheated out of the value of their feudal incidents by the
practice of subinfeudation. They had taken tenants who held their estates in fealty to the
lord, owing to the lord the duty of service and the feudal incidents of homage, relief,
wardship, marriage, aids, and escheat. This was the process of infeudation. But rather
than simply retain possession of the land and farm it, their tenants had conveyed all or
part of their lands to their own tenants. They had done their own infeudation to their
sub-tenants, i.e., subinfeudation.     Frequently their tenant's tenants had further
subinfeudated by taking tenants of their own by conveying all or part of what they had
received to their own tenants. The process of subinfeudation continued on and on.

       Worst of all, this subinfeudation had frequently occurred in exchange for a large
sum down-payment and merely nominal duty of service, such as payment of a rose or a
peppercorn per year. This meant that where the lord's tenant had taken a tenant whose
duty of service was nominal, the lord's anticipated profits from relief, wardship, marriage
and escheat would become worthless.

       No one would pay a large sum for the privilege of marrying the female heir to an
estate when the only income from that estate would be the payment of a rose each year.
Nor was there any profit to be made from the wardship of a minor whose only property
was the right to receive a rose each year. The heirs of a deceased tenant would
probably refuse to pay any relief for the honor of succeeding to an estate which consisted
of income of a rose per year. And if the estate were left vacant and escheated to the lord,
who would buy it from him if it consisted only of the right to receive a rose each year but
also obligated the buyer to pay a substantial duty of service each year? No one.

        Therefore, in 1290 A.D. these great lords engineered the passage of a new statute
called Quia Emptores. The purpose of this statute was to prohibit subinfeudation by
anyone except the king's tenants-in-chief, i.e., those landowners who held their freeholds
directly from the king. Thereafter, when a tenant transferred an estate, the transferee
would take the grantor's place in the feudal relationship which the grantor had with his
lord. The transferee would owe to his transferror's lord the duty of service and feudal
incidents which the transferror had owed.

       However, Quia Emptores applied only where the transferror conveyed his entire
estate in that land. If the transferror conveyed only part of the estate which he owned in
the land, keeping any part of his estate in that land however small, then Quia Emptores
did not apply. Rather than being substituted for the grantor in the feudal relationship
which he has with his lord, the transfer would still effect a subinfeudation. The grantee
would hold the land in a feudal relationship with his grantor, and his grantor would still owe

                                             73
his duty of service and feudal incidents to his lord.

       Another limitation of this statute was that it only prevented any new subinfeudation.
Subinfeudation which had already occurred prior to the passage of the statute was not
affected by the statute. Hence, prior subinfeudation was still valid.

       For example, the King conveyed land in fee simple absolute to A. A conveyed the
fee simple absolute to B who then conveyed to C. If this occurred before Quia Emptores,
C held of his lord B, who held of his lord A, a tenant-in-chief, who held of the King.

                                    King
                                     │
                                     │ fee simple absolute
                                     
                                     A (tenant-in-chief)
                                     │
                                     │ fee simple absolute
                                     
                                     B
                                     │
                                     │ fee simple absolute
                                     
                                     C


If this had occurred prior to Quia Emptores becoming law, then the subsequent passage
of the statute did not change these relationships. However, if this sequence had
occurred after Quia Emptores, C would be substituted for B with the result: C holds of A,
a tenant-in-chief, who holds of the King. Thus, C would owe his duty of service to A.
Because A is the tenant-in-chief, he could take tenants of his own. However, when B
conveyed his entire fee simple absolute to C, he was placed in B's shoes with regards to
his grantor's duty of service and incidents.

       If, however, B had conveyed only part of his fee simple absolute to C, for example
a fee tail, then Quia Emptores would not apply. Then, B would still owe the duty of
service and feudal incidents to his lord, A, even though B had merely a reversion. C
would not replace him in these obligations.



Questions:

1.     The King conveyed land by feoffment to "A and his heirs." A conveys by
       feoffment to "B and her heirs." Before Quia Emptores became the law, of whom

                                             74
     would B hold?

Answer:

     B would hold of A. A holds directly from the king who is his lord. When A
     conveyed to B, he took B as his tenant. Thus, B holds his land of A, his lord.


2.   The King conveyed land by feoffment to "A and his heirs." A conveys by
     feoffment to "B and her heirs." After Quia Emptores became the law, of whom
     would B hold?

Answer:

     B would hold of A. A holds his land of the king, his lord, so he is a tenant-in-chief
     of the King, so he can still subinfeudate. When A conveyed to B, B accepted A as
     his lord. So B holds of A.


3.   The King conveyed land by feoffment to "A and his heirs." A conveys by
     feoffment to "B and her heirs." Later, B conveyed the land to "C and his heirs." If
     this all occurred before Quia Emptores became the law, of whom did C hold?

Answer:

     C would hold of B who held of A who held of the king. This is an example of the
     continual process of subinfeudation.

4.   The King conveyed land by feoffment to "A and his heirs." A conveys by
     feoffment to "B and her heirs." Later, B conveyed the land by feoffment to "C and
     his heirs." If this all occurred after Quia Emptores became the law, of whom did C
     hold?

Answer:

     C holds of A. In order to determine if Quia Emptores applied, it would be
     necessary to determine if each participant had conveyed his or her entire estate,
     so the first step is to determine what was conveyed by each conveyance. The
     king used the traditional words of inheritance and limitation ("and his heirs") to
     evidence his intent to transfer a fee simple absolute to A and the conveyance was
     by feoffment, the ceremony necessary to transfer a freehold like a fee simple
     absolute. Similarly, A's conveyance to B transferred the fee simple absolute to B,
     and B's conveyance to C had the effect of transferring B's fee simple to C.
           When the king conveyed to A, A became a tenant-in-chief, holding of the
     king. A conveyed all he had to B, but Quia Emptores does not apply to

                                          75
     tenants-in-chief, so B holds of A. B conveyed her entire estate, the fee simple
     absolute, to C. B is not a tenant-in-chief and she has conveyed her entire estate
     so Quia Emptores does apply. So, C takes B's place in the duty of service and
     feudal incidents which B owed to her lord, A. Thus, C holds the land of A.

5.   The King conveyed land by feoffment to "A and his heirs." A conveys by
     feoffment to "B and her heirs." Later, B conveyed the land by feoffment to "D for
     life." If this all occurred after Quia Emptores became the law, of whom does D
     hold?

Answer:

     D holds of B. Quia Emptores does not apply where a grantor has not conveyed all
     interest in the land to the grantee. Here, B conveyed only part of the fee simple
     absolute to D, a life estate. Because Quia Emptores has not substituted D for B in
     the feudal relationship which B has with A, D holds of B who still holds of A.


6.   The King conveyed fee simple absolute by feoffment to A, the duty of service to be
     the payment of 2 pounds of silver per year. A conveyed the fee simple absolute
     by feoffment to B, the duty of service to be the payment to A of 8 pounds of silver
     per year. B conveyed the fee simple absolute by feoffment to C under an
     agreement that required C to pay B 20 pounds of silver immediately and thereafter
     the duty of service to B would be the payment of one (1) rose per year. This all
     occurred before Quia Emptores.
            B died leaving an adult unmarried daughter as his heir. The incident of
     marriage entitles his lord, A, to sell the right to marry her. Will A have any difficulty
     selling the right to marry B's daughter? (Answer the question from a purely
     financial point of view.)


Answer:

     It is unlikely A will find a buyer. Marrying the daughter will entitle the husband to
     the income from the estate, but that is only one rose per year. However, marrying
     the heir will obligate him to pay 8 pounds of silver per year to A, the lord. Unless
     the rose is more valuable than 8 pounds of silver (and that is highly unlikely), the
     incident of marriage has lost its financial value to A due to this subinfeudation.

7.   The King conveyed fee simple absolute by feoffment to A, the duty of service to be
     the payment of 2 pounds of gold per year. A, a tenant-in-chief, conveyed the fee
     simple absolute by feoffment to B, the duty of service to be the payment to A of 8
     pounds of gold per year. B conveyed the fee simple absolute by feoffment to C
     under an agreement that required C to pay 20 pounds of gold immediately to B and
     thereafter the duty of service to B would be the payment of one (1) rose per year.

                                            76
     This all occurred after the Statute of Quia Emptores became law.

     part a) B died leaving an adult unmarried daughter as his heir. Will the incident of
     marriage prove profitable to A under these circumstances? (Answer the question
     from a purely financial point of view.)

Answer:

     No. When B conveyed her fee simple absolute to C, Quia Emptores did apply,
     and by the Statute's terms, C was substituted for B in the feudal relationship which
     B had with his lord, A. [Remember, Quia Emptores does not apply to A because
     he is a tenant-in-chief.] Therefore, C is the tenant of A, owing A the duty of
     service and the feudal incidents, including the incident of marriage.
             Because C took B's place in the feudal relationship of lord and tenant, B no
     longer owes A the duty of service or the incidents, including the incident of
     marriage. Thus, when B died leaving as his heir an unmarried daughter, A had no
     right to choose a husband for her.

7.   part b) C died leaving an adult unmarried daughter as his heir. Will the incident of
     marriage prove profitable to A under these circumstances? (Answer the question
     from a purely financial point of view.)

Answer:

             Due to Quia Emptores, C took B's place in the feudal relationship of lord and
     tenant, so C owed A the duty of service and the incidents, including the incident of
     marriage. When C died leaving an unmarried daughter as his heir, the incident of
     marriage would give his lord A the right to choose a husband for her. He could, in
     effect, sell the right to marry her.
             The buyer would be obligated to pay the duty of service of 8 pounds of gold
     per year to A, but the buyer would be entitled to all the income he can derive from
     the possession of the land and, if the land is likely to produce an income of over 8
     pounds of gold per year, then a buyer might be willing to pay for the right to marry
     C's child. Whatever amount A can sell that right for will be A's profit from the
     incident of marriage.




                                          77
                                         Chapter 11


                      The Prohibition of Seisin Shifting or Springing


        As we have already learned, technical rules evolved in order to maintain the
integrity of the feudal system. The importance of these rules to the feudal system cannot
be overemphasized.

       1. There could never be a gap in seisin i.e., no gaps in seisin.

       2. Seisin could not spring out of the grantor in the future. It must leave the grantor
       at the time of the attempted feoffment or not at all, i.e., seisin cannot spring.

These rules seem logical, but the logic of the third rule may seem more strained.

       The third rule was that seisin could never shift from one grantee to another due to
a condition (i.e., seisin cannot shift). The terms "spring" and "shift" are used to
distinguish similar but distinct phenomena. Springing refers to seisin being transferred
from the grantor to a grantee at a time after the conveyance was made. Shifting refers
to seisin being transferred from one grantee to another at a time after the conveyance
was made.

        The prohibition on seisin shifting from one grantee to another was based upon the
same policy which prohibited gaps in seisin and prohibited seisin from springing. The
stability of the feudal system by which the country was governed required that the one
with seisin could always be easily determined. The one with seisin was, of course, the
one obligated to the lord to provide the duty of service, often the provision of military, and
the incidents including the obligation of loyalty imposed by the oath of homage. If seisin
might shift bases upon some condition, then the lord would be unable to determine who
owned the land from the terms of the conveyance. That would undermine the country
and so it was prohibited.

       Note that neither a fee simple determinable nor a fee simple subject to condition
subsequent would violate this policy because, in both, it is the grantor, originally the lord,
to whom the seisin would transfer. A possibility of reverter and a right of re-entry were in
the grantor and that was permissable. The prohibition was against a conveyance which
put these interests in anyone other than the grantor, i.e., causing the seisin to shift to a
third party was prohibited.




                                             78
Questions:

Explain what interest each person has after the conveyance described.

1.    A conveys by feoffment to "B and her heirs as long as the land is used for
      residential purposes."

Answer:

      B has a fee simple determinable.
      A has a possibility of reverter.

2.    A conveys by feoffment to "B and her heirs, but if the land is ever used for
      nonresidential purposes, then the grantor may retake the land."

Answer:

      B has a fee simple subject to condition subsequent.
      A has a right of re-entry.

3.    In 1500 A.D., L owned land in fee simple absolute. He conveyed to X by livery of
      seisin using the words, "to X and his heirs but not beginning until X turns 21."
      What interest do X and L have?

Answer:

      X has nothing. L intended to pass a fee simple absolute to X, based upon the
      words of limitation and inheritance which he used (and his heirs). A fee simple
      absolute is a freehold so it involves seisin. L used the proper means to transfer
      seisin, the livery of seisin, but L tried to delay the effect of the conveyance until a
      time in the future. L attempted to make seisin spring out of the grantor (L).
      Seisin cannot spring and, therefore, the conveyance fails. L must still have the
      fee simple absolute.

4.    In 1500 A.D., G, the owner of land in fee simple absolute, enfeoffed "H and his
      heirs for as long as the land is used as a personal residence and then to I and his
      heirs." What interests do G, H and I own?

Answer:

      G intended to transfer a fee simple to H as evidenced by the words of limitation and
      inheritance which he used ("and his heirs"). However, G did not intend that H's
      fee simple would necessarily last infinitely long, i.e., it was not intended to be
      absolute. It might last infinitely, but it might end at an earlier time because it was
      intended to be cut short if a condition, that the land be used only as a personal

                                            79
residence, was ever violated. On the occurrence of this condition, G's expressed
intent was that I get the possessory interest. In other words, G intended that on
the violation of the condition the possessory right would shift to I.
        Upon the interest shifting to I, I was intended to have a fee simple absolute,
as evidenced by the words of limitation and inheritance used. Therefore, G
intended that I get a shifting interest in fee simple absolute.
        The problem is that G intended I receive a legal freehold. This would
involve seisin. G used the appropriate method to transfer seisin, the feoffment
ceremony, but G has violated the rule that seisin cannot shift.
        Therefore, I would received nothing. The question is what did H receive.
G intended that the interest shift to I and that cannot happen. So what did G intent
to happen in that event? There three possibilities and the determination of which
prevails would depend on which one a court might decided was G's primary intent.
        First, G might have the primary intend of conveying away his entire fee
simple absolute. He conveyed a fee simple to H, but it was a fee simple which
was subject to a shifting interest. The shifting is prohibited from ever occurring, so
H received a fee simple subject to a shift which can never occur. Therefore, H
has, in effect, received a fee simple absolute.
        Alternatively, G primary intent might be that H's estate end on the
occurrence of the condition. Since the seisin could not then shift to another
grantee, it must revert to the grantor. In other words, H receive a fee simple
determinable. On the violation of the condition, the possessory interest would
revert to G because G had retained a possibility of reverter.
        However, G may not have primarily intended either of the two possibilities
above. If a court were to determine that G's intent would be frustrated by either of
those possibilities, then it would conclude that G would not intend to pass any title
if the shifting interest did not work. If G did not intend to pass any title, then G
must still have it. That would result in G still having the fee simple absolute, H
having nothing and I having nothing.




                                      80
                                         Chapter 12

                                             Uses


                                   I. Understanding Uses

        As we have already learned, seisin was critical to maintaining the stability of the
feudal system by which England was governed, so rigid rules evolved to insure that there
would be no difficulty in identifying who held seisin. These rules allowed seisin to be
transferred voluntarily only by the feoffment ceremony. The rules prohibited voluntary
transfer by any other method. The rules also prohibited any gap in seisin, even for the
slightest moment. And these rules prohibited seisin from springing out of the grantor at
any moment after the feoffment ceremony or shifting from one grantee to another based
upon a condition. The rigidity of these rules often prevented landowners from disposing
of their land as they wished.

       In particular, many landowners wanted to choose who would get their land when
they died, rather than having it automatically pass to their heirs. A person might express
his final will, i.e., his intent as to what would happen to his property at his death, and
memorialized that intent in a written document, i.e., a testament (often called a "last will
and testament" or simply a "will"), and that would be enforced as far as the distribution of
his personal property. But the last will and testament would not be recognized as a
means of passing title to land, except in the few places where that was allowed by local
custom. Frustrated landowners sought a way to overcome this problem and discovered
that the court of equity provided a solution. It is important to understand that the court of
equity was a court system separate from the law courts.

       Equity grew out of the power of the Chancellor's power to grant special relief where
the ordinary workings of the law would cause an injustice. Equity was the court of
conscience so it would enforce a purely moral obligation which the courts of law would not
even recognize. A landowner who was morally, but not legally, obligated to hold that
land for the use (i.e., for the benefit) of another would be forced by the court of equity to
live up to his obligation.

         Being the court of conscience, the court of equity made decisions based upon the
maxim that "equity considers done what ought to be done." In the court of equity, parties
rights and responsibilities were determined as if the obligation had already been
performed. If the obligation was to hold the title for the use of another or to transfer the
title to the other, that would vest title in the grantee as far as the equity court was
concerned. Because the court of equity considered the grantee to have received the
title, the grantee was said to have received equitable title. That transfer would not be
recognized by the court of law because there had been no feoffment, so legal title had not
been transferred to this grantee who did have equitable title. This is the basis for the
distinction between legal title and equitable title. Legal title is a title which a court of law

                                              81
would recognize. Equitable title is a title which only a court of equity would recognize.

       How might a moral obligation to convey or to hold for the use of another, which the
court of equity would recognize, be created? Since the court of equity was (and is) the
court of conscience, the moral obligation could arise from a promise which was express or
implied and which the promisor was obligated to perform. The obligation to perform
might be based upon a close blood relationship to the promisee or upon the fact that the
promisor had accepted something of value, i.e., valuable consideration, in exchange for
the promise.

        In an example, a landowner, named L, received title expressly promising his
grantor, named G, that he would hold the land for the use of a third party. G, conveyed
his land in fee simple absolute to L by feoffment but subject to the express obligation that
the land be held for the use of B and that B would have an interest which could be
inherited by his (B's) heir or conveyed to another person. The words used in making the
livery of seisin might be:

       "...to L and his heirs for the use of B and his heirs."

L had received a fee simple absolute (based upon an analysis of the words of purchase,
limitation and inheritance) by the feudal ceremony of feoffment, so he could enforce his
title in a court of law. Consequently, L had received the legal fee simple absolute.

        Under the terms of the conveyance which L had voluntarily accepted, L was
obligated to hold the land for B's use. L had accepted valuable land in exchange (at least
partially) for undertaking this obligation so he would be morally obligated to perform. If L
did not live up to his obligation, B could not go into the court of law to claim the land
because no title had been transferred to him by livery of seisin. However, B could go to
the Chancellor's court, the court of equity, for relief. Equity, the court of conscience,
would make L perform as he was morally obligated, even though not legally obligated.
Although L has legal title, B has equitable title. L's and B's interest can be described by
saying that A had the legal fee simple absolute and B had the equitable fee simple
absolute.

       Another example may help illustrate the distinction. Suppose that you were told
that C had a fee simple absolute. Is C's title legal or equitable? You have not been told
which it is. However, there can never be a gap in seisin so there must always be a legal
title. But there need not always be an equitable title to the property. In fact, the natural
state of affairs for there to be only a legal title. Therefore, when you were told that C has
a fee simple absolute, it probably meant that C had the legal fee simple absolute.

       Ordinarily, writers will use the expression legal title only to distinguish it from an
equitable title. So, in discussing interests in land, the word "legal" will probably be used
only when someone else has the equitable title. It probably will not be used when there
is no outstanding legal title.

                                              82
        A use could be created by enfeoffing the grantee to the use of another, as
illustrated above. In addition, there were three other methods. These were:

       1.     bargain and sale

       2.     covenant to stand seised

       3.     resulting use (later called a resulting trust)


        A bargain and sale meant that the grantor and the grantee had bargained over the
property, had agreed to a price for its sale, and the price had been paid. This transaction
would be memorialized by a document which was called a "bargain and sale deed" which
memorialized that the deed, i.e., the act, of a bargain and sale had occurred. The
bargain and sale deed would be executed by the grantor, showing his intent to transfer
title, and delivered to the accepting grantee. However, where the property involved in
the bargain and sale deed was a freehold, the grantee could not get legal title because
that would require that the grantee get seisin by the feudal ceremony of feoffment. That
had not happened, but since the grantor had accepted the valuable consideration for this
bargain and sale deed, he had a moral obligation to see title did actually pass. This
obligation was enforceable in equity, so the grantee received equitable, although not
legal, title.

       The grantor could also enter a covenant to stand seised to the use of the grantee.
Here, the grantor has not conveyed any interest, but he did promise to hold his estate for
the grantee's use, but was he morally obligated to perform this promise? He had not
bargained for and received payment for this promise as would have occurred in the
bargain and sale situation. However, a covenant to stand seised was ordinarily made to
and for the benefit of a blood relative, most often a child. The moral obligation arose out
of the blood relationship. This promise to a blood relative would be enforced by a court
of equity because conscience demanded that a promise to a blood relative must be kept.
Consequently, where a covenant to stand seised had been made to a blood relative, the
grantee got the use, i.e., the equitable title, and the grantor retained the legal title.

        The obligation to perform as promised to a blood relative has been labeled "good
consideration" to distinguish it from the "valuable consideration" which made a bargain
and sale effective. The label "good consideration" can lead to some confusion for
students who are studying both contracts and property. In your contracts course, you
will learn that the love and affection could never be consideration to make a promise
enforceable, i.e., a valid contract. For that reason, a covenant to stand seised, even if
made to a family member, would not be enforceable at law. But remember, that our
focus here is not on law, but on equity. The covenant to stand seised made by a blood
relative would burden the covenantor with a moral obligation which equity would enforce.
So even though the covenantor would still have the legal title, he would have to hold it for

                                              83
the use of his blood-related grantee.

        A resulting use arises from an entirely different situation, whenever a grantor
successfully conveyed an estate by feoffment to an unrelated grantee without receiving
something of value in return. If the grantee was not within the grantor's immediate
family, it was presumed that the grantor could not have intended to make a gift of the land.
No one would give away something as valuable as land to someone outside the family!
Land was too important! The grantor must have intended that the grantee get only the
legal title and hold it for the grantor's own use. Therefore, the grantor retained the
equitable title and grantee got the legal title.

       In 1536 A.D., a statute became law which might affect the title transferred by these
methods. That statute was called the Statute of Uses. We will learn about it in Chapter
13. It is, however, critical to understand the effect of these transactions prior to applying
the statute for two reasons. First, there are situations to which the statute does not
apply. Second, the way that the statute is applied requires first figuring out what would
have happened if the statute did not exist.


Questions:

1.     In 1500 A.D. (before the Statute of Uses) A, the owner of fee simple absolute,
       conveyed the land by bargain and sale to "B and her heirs" in exchange for the
       price of 50 pieces of gold.

(a)    What estate does B have?


Answer:

       B has an equitable fee simple absolute. B has not received the legal freehold
       because that would require the livery of seisin. However, A has become morally
       obligated to convey because, following the bargaining, A accepted valuable
       consideration. Therefore, A ought to convey the property to B. Since equity
       considers done what ought to be done, equity considers the property to have been
       conveyed to B. So B has equitable title. Analysis of the words of limitation and
       inheritance reveal that the title A intended B to receive is a fee simple absolute.
       Thus, B has an equitable fee simple absolute.


(b)    What estate does A have?


Answer:


                                             84
      A still has the legal fee simple absolute. A had the legal fee simple absolute at the
      start of events here. The only method by which A could transfer this legal freehold
      would be feoffment. That has not occurred.

2.    The King enfeoffed "A and his heirs."         A enfeoffed "B and her heirs." B
      enfeoffed "C and his heirs for the use of D and his heirs." All this occurred before
      1536 A.D.

(a)   What estate does C have?

Answer:

      C has the legal fee simple absolute. The King by transferring the fee simple
      absolute to A (his intent to transfer the fee simple absolute is clear from his use of
      the traditional words of limitation and inheritance attached to a fee simple absolute,
      i.e., "and his heirs," and he used the required ceremony of feoffment). Similar
      analysis leads us to the conclusion that A successfully conveyed the fee simple
      absolute to B. B intended that C receive fee simple absolute based upon the
      words he used (his intent to transfer the fee simple absolute is clear from his use of
      the traditional words of limitation and inheritance attached to a fee simple absolute,
      i.e., "and his heirs,") and he used the ceremony of feoffment necessary to transfer
      a legal freehold. Thus, C has the fee simple absolute.


(b)   Who has seisin?


Answer:

      C has the legal freehold, the fee simple absolute as we determined in the last
      question. So C has the seisin.

(c)   What estate does D have?

Answer:

      The conveyance requires that C, the freeholder, hold for the use of "D and his
      heirs." Thus, D has an equitable, but not legal, interest. The words of limitation
      ("and his heirs") and inheritance ("heirs") which the grantor used evidence an
      intent that D's estate last infinitely long and be inheritable. That describes a fee
      simple absolute. But the grantor expressed an intent that C have the legal title,
      not D. C accepted valuable land subject to these terms so C is morally bound to
      fulfill the obligation. Since equity considers done what ought to be done, D will be
      treated by equity as if he had specified title. Thus, D has an equitable fee simple
      absolute.

                                            85
3.    In 1500 A.D., E, the owner in fee simple absolute, enfeoffed "F and her heirs to the
      use of G and his heirs."

(a)   What estate does F have?



Answer:

      F has received the legal fee simple absolute. E had the fee simple absolute to
      convey and used the appropriate method, feoffment, to convey it. He evidenced
      his intent to convey the entire estate by using the words of limitation "and his heirs"
      and to convey an inheritable estate by using the words of inheritance "heirs."


(b)   What estate does G have?


Answer:

      G has an equitable fee simple absolute. The grantor has expressly transferred
      the legal fee simple to E and expressly obligated E to hold that title for G's use.
      The grantor has thus expressed the intent that G not get the legal title, so he does
      not get legal title. However, the grantor has obligated E to hold the legal title in a
      particular way, for G's use. E has accepted the valuable land subject to this
      obligation and so he ought to fulfill it. Since equity considers done what ought to
      be done, equity considers G to have the use, an equitable title. This equitable title
      is a fee simple absolute because the grantor used the appropriate words of
      limitation and inheritance, and his heirs, to create that estate.


(c)   What estate does E have?


Answer:

      E has nothing. E conveyed away the entire legal fee simple absolute which he
      started with. In addition, he has expressed his intent that F have the entire
      equitable fee simple absolute, so he could not have intended to keep any interest
      in the land.


4.    In 1500 A.D., H , the owner of land in fee simple absolute enfeoffed "I for life."

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      Nothing was given in return and I is not related to H.

(a)   What estate does I have?

Answer:

      I has a legal life estate. H has expressed his intent that I's estate last only for his
      lifetime by the words of limitation "for life." A life estate is a freehold which could
      be transferred only by livery of seisin, but that has occurred here. So I has
      received the life estate.

(b)   What estate does H have?


Answer:

      H has a legal fee simple absolute and conveyed away a life estate. Therefore, H
      must have the reversion, that part of the fee simple absolute which he did not
      convey away. The reversion is a future estate which gives H the right to
      possession following I's death.
               In addition, H has an equitable life estate by the resulting trust theory.
      There is no understandable reason for H to make a gift to someone who is not a
      relative. Therefore, H must have intended to transfer only the legal title to I and
      have I hold that legal title for his (H's) use. I accepted valuable land in exchange
      for this obligation and so the obligation should be enforced. Since equity
      considers done what ought to be done, H will be treated as if he had the title during
      I's life estate. So, although I has the legal life estate, H has the equitable life
      estate.

5.    In 1500 A.D., C, the owner in fee simple absolute, covenanted to stand seised to
      the use of "D and his heirs."

(a)   What estate does C have?


Answer:

      C still has the legal fee simple absolute. C started out with the legal fee simple
      absolute and has not transferred it. To do so would require the livery of seisin
      which has not occurred here.


(b)   What estate does D have?



                                            87
Answer:

       That depends. If D is a blood relative of C's then C is morally obligated to perform
       as promised. Since C ought to convey, equity would consider the conveyance
       complete and D would have the equitable title which in this case is a fee simple
       absolute, i.e., D would have equitable fee simple absolute.
              However, if D is not a blood relative of C's, the outcome is different. C has
       not accepted valuable consideration in exchange for this promise which would
       obligate him to perform as promised, nor is there any family relationship which
       would morally obligate C to perform a gratuitous promise. So C is not obligated to
       perform (unless some other source for an obligation can be discovered). That
       means D has nothing, i.e., no equitable title and no legal title.


                                       II. Terminology

       A number of terms are used to describe the person for whose use a landowner
held the legal title. Suppose a landowner covenanted to stand seised for the use of his
daughter. Traditionally, the daughter would be called the cestui que use. We would
also say that the daughter "has the use" or "owns the use." The modern term is
borrowed from trust law because the modern law of trusts evolved from the medieval law
of equitable uses. The modern expression would be to say that the daughter is the
beneficiary of the use. And borrowing from the modern law of trusts, we might also say
that the landowner-father is the trustee because he holds land for the use of, or in trust for,
his daughter.



                            III. Passing Land at Death by a Use

      In medieval At this time, a landowner could not leave his land at his death to the
person of his choice by means of a last will and testament. This was changed in 1540
A.D. by statute, as we will learn later on. However, it is important to understand how this
problem was solved before the statute because that had an critical effect on the
development of real property law.

        Landowners soon learned that they could employ an equitable "use," to
accomplish the same thing. This is the way it worked. The landowner, nearing death,
would enfeoff "A and his heirs to the use of the landowner for his own life and then to the
use of whomever the landowner might name in a letter written to A".               After the
conveyance, A had the legal fee simple absolute, but the landowner had an equitable life
estate. After the landowner's death, A had the moral obligation to convey the legal fee
simple to whomever the landowner had chosen. If A failed to convey as he was
obligated, the chosen successor could go to the court of equity for relief. It would force A
to live up to that moral obligation. Because equity considered done what ought to be

                                              88
done, and after O's death A was obligated to convey to him as directed, the named
beneficiary was treated by equity as having title. In other words, the chosen beneficiary
had equitable title and the court of equity would, if necessary, force A to convey the land
to the beneficiary.

Questions:

1.    In 1500 A.D., a landowner feared that death was approaching. He decided that
      he wanted his land to pass to his grandson, rather than be inherited by his evil son.
      He wrote out his "Last Will and Testament" which expressed his intent to have the
      land pass to his grandson. Who got the land when the landowner died?


Answer:

      Probably, the evil son. Unless this was one of the few places where wills were
      recognized by local custom, land passed at death according to the laws of
      inheritance, i.e., to the heir who would be the oldest son (remember, at this point in
      England, the rule of primogeniture controlled).

2.    Is there any way which the landowner could keep the land until his death but see
      that this grandson became the owner when he died?

Answer:

      Yes. The landowner could convey the land to a person he trusted to hold for the
      landowner's use during his life and then to convey to his grandson on the
      landowner's death. Hopefully, the friend would convey as directed. If his
      conscience lapsed, the court of equity would enforce the obligation even though a
      court of law would not recognize such an arrangement. The landowner might
      even undertake a few safeguards. Rather than just have one friend hold legal
      title, perhaps name two or three, to insure against the possibility that one might
      suffer a premature death. (In later lessons we will learn about how two or three
      people might hold a title together.) In addition, paying the friend(s) to undertake
      this task would eliminate any doubt as to whether they are morally obligated to
      perform.




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                                         Chapter 13

                                Springing and Shifting Uses


       Seisin was a legal concept. Equity, the court of conscience, was not concerned
with legal technicalities such as seisin. It was concerned with enforcing moral
obligations. So equity would recognize interests, i.e., equitable titles, even though
someone else held the seisin and the legal title. The restrictive rules regarding seisin,
the rules which prohibited gaps in seisin and which prohibited seisin from shifting and
springing, did not apply to equitable titles.

        Landowners learned that they could circumvent these rigid rules concerning seisin
by using equitable titles rather than legal ones. Since the Court of Equity was not
concerned with seisin, equitable freeholds could began in the future. They could spring
or shift because no seisin was involved in the equitable titles, even equitable freeholds.
The rule that seisin could not spring or shift simply did not apply to equitable titles
because seisin was connected only to legal freeholds. These springing and shifting
uses were also called executory uses, and sometimes springing or shifting executory
uses.

       Similarly, there could be gaps in an equitable title. In fact, most often there would
be only the legal title. There would not be an equitable title. Requiring the legal title
holder to hold for the use of another was an unusual, rather than a normal, situation.

        In that exceptional case, the legal title holder would hold for the use of another, the
one who held equitable title. The rule which prohibited any gap in seisin applied only to
legal freeholds because those are the only titles involving seisin. The rule did not apply
to the equitable titles.

        There could be no gap in seisin, but that only required that there always be a
person holding the legal freehold. Any vacancy in seisin would cause the estate to
immediately escheat to the lord, in order to protect the integrity of the feudal system. But
that rule would not be violated by a gap in the equitable title because equitable titles did
not involve seisin.

Questions:

1.     In 1500 A.D., L owned land in fee simple absolute. He conveyed to C by livery of
       seisin using the words, "to C and his heirs to hold for the use of D but D's use shall
       not begin until D turns 21. Until then, C will hold for the use of L, the grantor."

(a)    What interest does C have?

Answer:

                                              90
      C has received the fee simple absolute. L had the fee simple to convey. Based
      upon the words of limitation and inheritance which L used (and his heirs), L
      intended to convey the fee simple absolute. A fee simple absolute is a freehold
      which involves seisin, and L used the method by which seisin could be transferred,
      livery of seisin. None of the rules concerning seisin, i.e., that it cannot spring or
      shift or have any gaps, have been violated.

(b)   What interest does D have?

Answer:

      D has either an equitable springing interest in fee simple absolute.
             L intended that the one with the legal title, C, hold that title for the use or
      benefit of D. C has accepted valuable land under those terms and so is morally
      bound to perform and a court of equity would enforce this moral obligation.
             Since equity considers done what ought to be done, D is considered to have
      acquired an equitable title. This title is a future interest because D's rights do not
      begin until D's next birthday.
             To determine what type of future interest, we must examine at what point
      D's rights do begin. Up to the moment of D's twenty first birthday, C is holding for
      the use of the grantor L. So L has an equitable title up until that moment. On the
      occurrence of the event, the grantor's interest ends and the right to the land goes
      to D, a grantee. So, by definition, this is a springing interest.

2.    What if the conveyance in question one had not expressly stated that, until D's
      twenty first birthday, C was to hold for L. In other words, what if the question had
      said:

             "In 1500 A.D., L owned land in fee simple absolute. He conveyed to C by
             livery of seisin using the words, "to C and his heirs to hold for the use of D
             but D's use shall not begin until D turns 21."

      What interest would D have?

Answer:

      The question would turn on whether the grantor intended to retain any equitable
      interest? He did not do so expressly, but did he do so impliedly by means of a
      resulting use?
              If C had not paid valuable consideration for the land and was not a blood
      relative of L's, then L could not, in all probability, have intended that C have the
      property to himself until D's 21st birthday. L must have intended that C hold the
      property for L's use until that time. C must have understood that and accepted
      according to those terms. Thus, L has the resulting use which amounts to the

                                            91
      equitable fee simple until D turns 21, but that might never occur. D might die too
      young. So L has an equitable fee simple subject to D's springing interest. (We
      might also say that L has an equitable fee simple subject to a springing interest.)
      It is a springing interest because the event cuts short the rights of the grantor out of
      whom the interest springs.
               If C did pay valuable consideration for the land or was a blood relative, then
      it would be reasonable to conclude that L did not intend to keep any equitable
      interest in the land. Thus, until D turns 21, C would have the legal fee simple
      absolute and it would not be subject to any equitable interests. When D turns 21,
      then C must hold for D's use. So D has a shifting interest. It is a shifting (rather
      than springing) interest because until that event the entire title will be vested in
      another grantee, C. On the occurrence of that event, C will have to hold for D's
      use.
               D's equitable springing or shifting interest is in fee simple absolute because
      the grantor specified that it was to "D and his heirs." The words "and his heirs" are
      the traditional words used to demonstrate the grantor's intent that the estate be a
      fee simple absolute.

3.    In 1500 A.D., A, the owner of land in fee simple absolute enfeoffed "B and his
      heirs." B enfeoffed "C and her heirs to the use of B and his heirs, but upon B's
      death to the use of whomever B later names."

(a)   Who has seisin?


Answer:

      C has seisin. A had seisin at the beginning because he had the legal freehold, the
      fee simple absolute. Use of the words "and his heirs" shows that A intended to
      transfer the fee simple absolute to B. Fee simple absolute is a freehold involving
      seisin so the transfer must be effect the livery of seisin. A used the feudal
      ceremony of feoffment which involved the livery of seisin.
             Similar analysis leads to the conclusion that B has transferred the legal fee
      simple absolute to C. C is required to hold that legal title for the use of other
      people. Those uses would be, at most, equitable titles and equitable titles do not
      involve seisin.
             Therefore, C has seisin because C holds the legal freehold.


(b)   What interest does B have?


Answer:

      B has equitable because C has accepted the legal title subject to B's use, an

                                            92
     obligation which equity would enforce. The of words of limitation and inheritance
     which would lead to the conclusion that B had intended to retain an equitable fee
     simple. However, B has also retained the power to appoint who will get the
     equitable interest, i.e., to whom C will be required to convey, after B's death.
     Thus, the grantor's equitable title will be cut short upon his death and the title will
     spring out to the person named. Therefore, B has an equitable fee simple subject
     to a springing interest and the power of appointment over who will get the springing
     interest. Powers of appointment become an important topic in the later courses on
     Wills and Trusts. We will not devote any further attention to them in these
     materials.



4.   In 1500 A.D., J, the owner of land in fee simple absolute, enfeoffed "K and his
     heirs to hold for the use of L and his heirs as long as the land is used as a personal
     residence and then for the use of M and his heirs." What interests do J, K, L and
     M own?

Answer:

     J intended to transfer the fee simple absolute to K as evidenced by the words of
     limitation and inheritance which he used ("and his heirs"). This is a freehold
     involving seisin and he used the appropriate method of passing seisin, a feoffment
     ceremony. Therefore, K received fee simple absolute.
             J intended that L have the equitable title, i.e., that K hold the legal title for the
     use or benefit of L. K accepted the conveyance under those terms and so would
     be obligated to perform. The equitable title which L received was intended to be a
     fee simple based upon J's use of the words "and his heirs." However, J did not
     intend that the fee simple be absolute. Rather J intended that the fee simple be
     cut short on the violation of a condition. Upon that event, J intended that the
     possessory interest shift (shift from one grantee to another) to M. Therefore, L
     had an equitable fee simple subject to a shifting interest.
             M had an equitable shifting interest. It was in fee simple absolute because
     it was described by the words of limitation and inheritance, "and his heirs." So, M
     had an equitable shifting interest in fee simple absolute.
             But aren't shifting interests prohibited? No! What is prohibited is seisin
     shifting. The interests here do not involve seisin because they are equitable
     interests. So the rule does not apply to them.

5.   In the year 1500 A.D., N, the owner of land in fee simple absolute, conveyed by
     bargain and sale to "P for his life and 5 days after P's death then to R and his
     heirs." What interests do N, P and R have?

Answer:


                                              93
     N had the fee simple absolute. To transfer a legal freehold would require the livery
     of seisin, the feoffment ceremony. That has not occurred, so no legal freehold
     could have been transferred. Instead N used a bargain and sale. Because N
     accepted the valuable consideration which was the bargained for price of the land,
     N is now morally obligated to hold the legal title for the use of the named grantees,
     P and R.
             The equitable interest which P has received is a life estate. It is a life
     estate because that was the grantor's intent in describing it by the words of
     limitation "for life" and without any words of inheritance to indicate that the estate
     was intended to be inheritable.
             R's estate does not begin immediately at the end of P's life estate.
     Therefore, it is not a remainder. R's estate begins at a time in the future.
     Immediately prior to that time, N, the grantor had the legal fee simple absolute and
     there were no present equitable interests (P's had already ended and R's had not
     yet begun). Therefore, at the moment when R's estate becomes possessory, it
     must spring out of the grantor. Therefore, R has an equitable springing interest.
     Because it is described by the words "and his heirs," it was intended to be an
     equitable springing interest in fee simple absolute.
             But there is a gap in the equitable estate between P's life estate and R's
     springing interest. Doesn't that violate the rule prohibiting gaps? No! The rule
     prohibits gaps in seisin. No seisin is involved in equitable interests, so the rule
     does not apply to equitable interests. A gap in equitable interests does not violate
     the rule.
             R has a springing interest in fee simple absolute. A fee simple absolute is a
     freehold. Doesn't that violate the rule regarding springing (and shifting)? No!
     The rule prohibits seisin from springing and shifting. R has an equitable springing
     interest. Seisin is involved only with legal freeholds. There is no seisin in equity.
     Therefore, R's equitable springing interest in fee simple absolute does not violate
     any rules.

6.   What is another name for a springing use?

Answer:

     A springing or shifting use could also be called an executory use, or even a
     springing executory use, although that phrase is needlessly repetitive because a
     springing use is, by definition, an executory use.

7.   What is another name for a shifting use?

Answer:

     A shifting use could also be called an executory use, or even a shifting executory
     use, although that phrase is needlessly repetitive because a shifting use is, by
     definition, an executory use.

                                           94
                                          Chapter 14

                                     The Statute of Uses


                            I. Understanding the Statute of Uses

        We have seen how a landowner could provide that his land pass to the person of
his choice at his death rather than being inherited by his heir. The likelihood of escheat
occurring because the landowner had died without an heir was greatly diminished. Also,
relief was payable to the lord when land was inherited. Consequently, an important
effect of this maneuver was that it prevented the lord from collecting relief upon the death
of his tenant.

       In addition, it almost totally eliminated the possibility that the lord would get to profit
from wardship or marriage because the landowner could arrange his affairs to avoid that
occurring. The landowner would convey the legal title to one or more healthy adult
males of his choice to hold for the use of his minor children or his unmarried daughter.
Thus, when he died, the land was legally owned by those grantees. Since they had not
died leaving the minor children or unmarried daughter, no wardship or marriage incidents
could be invoked.

       The great lords, including the King, were outraged (and financially distressed) at
being deprived of this income by these clever landowners. So they repeatedly passed
statutes in hopes of foiling the landowners' avoidance schemes, but none of these
statutes was successful in restoring the lost income. The last of these was the Statute of
Uses.

        The Statute of Uses became law in 1536 A.D. It stated that where one was seised
to the use of another, the one with the use (equitable title) would henceforth be treated as
if he were seised in law of whatever estate he would have had in equity. This wording
may sound horribly over-complicated. In fact, it was, and the landowners soon took
advantage of that defect.

         The medieval judges applied the statute exactly as it was written rather than in a
way which would produce its intended effect. They concluded that the statute applied
only where a conveyance obligated the one with the seisin, i.e., the owner of the legal
freehold, to hold for the use of another, i.e., the one who had equitable title.
Furthermore, the statute did not operate immediately but had to wait until a person held
seisin for the use of another for at least a moment. After an instant of time, called a
"scintilla juris," the one with the use would be treated as if he had legal title. This process
of transforming the use into "as if" legal title was called "executing the use."

       As stated above, the Statute of Uses was not the first attempt by the King and his
great lords to deal with the problem of uses. An earlier statute had provided that a

                                               95
grantee from the holder of a use would be seised (i.e., hold seisin) and so could be held
responsible for duty of service and the incidents. The cumulative effect of this earlier
statute and the Statute of Uses was to allow the holder of the executed use to convey a
legal freehold, including seisin, to a grantee, not because that made logical sense
(because it doesn't make logical sense), but only because that was the cumulative effect
of these statutes.


Questions:

1.    Before the Statute of Uses, A, owner of land in fee simple absolute, enfeoffed "B
      and her heirs to the use of C and his heirs."


      (a)    Who holds for the use of another?


Answer:

      B holds for the use of C. Remember, the words "and her heirs" or "and his heirs"
      are merely words of limitation and inheritance indicating the type of estate that B
      and C are to receive, so the heirs are not involved.

      (b)    Before the Statute of Uses, what interest or estate would A, B and C have
             had?

Answer:

      B has a legal fee simple absolute. The method of conveyance, enfeoffment, is
      effective to transfer legal title. The grantor, A, conveyed using the words of
      limitation and inheritance ("and her heirs") which indicate that the grantor intended
      that B receive a fee simple absolute.
              C has an equitable fee simple absolute. It is equitable because the grantor
      indicated his intent that the legal title be held by B, but that B hold for C's use.
      C's equitable title is a fee simple absolute because the grantor used the
      appropriate words of limitation and inheritance to indicate that intent ("and his
      heirs").
              A has nothing because he has conveyed away his entire fee simple
      absolute.

2.    Same facts as Question 1 but after the Statute of Uses.

      (a)    What estates or interests does A have?

Answer:

                                           96
     None. He had a fee simple absolute but he conveyed it all away to B. This is the
     same result as before the Statute of Uses.
     (b)   What estate or interest does C have?

     We have already determined that C would have received an equitable fee simple
     absolute prior to the Statute of Uses being passed. To determine the effect of the
     Statute of Uses, the first step is always to determine what the grantee would have
     received prior to the Statute's passage. Remember that the Statute would not be
     applied until after an instant in time had passed. During that instant, the Statute
     had no effect.
            The next step is to decide if the Statute would even apply. It only applied
     where someone was seised to the use of another. Here, B has fee simple
     absolute, a freehold. So B has seisin. B is holding for the use of C. Therefore,
     the Statute of Uses does apply.
            The Statute says that where one is seised to the use of another, the one
     with the use shall be deemed to have in law what he would have had in equity.
     Since C would have had a fee simple absolute in equity, i.e., an equitable fee
     simple absolute, C is deemed to have that in law. Therefore, C is deemed to have
     a "legal" fee simple absolute. We will see in a later section why the emphasis is
     made on this being "as if" legal or "legal" rather than truly and completely legal.
            We could restate this by saying that after executing C's use, i.e., C's
     equitable fee simple absolute, it becomes a "legal" fee simple absolute.

     (c) C later conveyed his fee simple absolute by feoffment to "X and his heirs."
     What did X receive?

Answer:

     As we have concluded above, C had a "legal" fee simple absolute. Here, C
     intended to convey a fee simple absolute to X, based upon the words of limitation
     and inheritance which C used ("and his heirs"). A fee simple absolute is a
     freehold involving seisin, and C employed the proper method to transfer a legal
     freehold involving seisin. So it would appear that X ought to receive a legal fee
     simple absolute.
             But C did not really have seisin. C only, according to the Statute of Uses,
     was deemed to have in law what he would have had in equity. Seisin was still in B
     because C was only deemed to have "legal" title. How could C transfer seisin to X
     if C did not have any seisin to transfer? How did seisin get from B to X?
             The answer is by operation of a statute. By statute the grantee from one
     with the use received seisin. Seisin was only imaginary anyway so it could do
     remarkable and illogical things. The King and Parliament had provided by statute
     that C could transfer seisin to X even though C never really had the seisin. So
     that is what happened.


                                         97
3.   Before the Statute of Uses, D, the owner of land in fee simple absolute, enfeoffed
     "E and her heirs to the use of F for life."

     (a)    Who holds for the use of another?

Answer:

     E holds for the use of F.

     (b)    What estates or interests do D, E, and F have?

Answer:

     E has a legal fee simple absolute. The feoffment is an effective method to
     transfer legal title to a freehold. The grantor indicated the intent that E's estate be
     inheritable and last infinitely long by the words "and her heirs." Therefore, E has
     received a fee simple absolute.
              F's interest is only a use, an equitable title, because the grantor indicated
     his intent that an equitable estate is all he wanted F to get. Moreover, there are no
     words of limitation to indicate that F's estate should last longer than his life. Nor
     are there words of inheritance to indicate that the grantor intended that the estate
     should be inheritable. Consequently, F received only an equitable life estate.
              The grantor conveyed away the entire legal fee simple absolute so there is
     no part of the legal title which he could have retained. However, he did not
     convey away an entire equitable fee simple absolute. Did he intend to retain an
     equitable interest? He did not express any intent to retain any part of the equitable
     title, but could such an intent be implied as a resulting use?
              If E did not pay valuable consideration to D and if E was not D's relative,
     then D must have intended to retain whatever part of the equitable title which he
     did not expressly convey away. That is a resulting use. Since he conveyed
     away the equitable life estate, he must have retained the equitable reversion.
     Therefore, E holds the fee simple absolute for the use of F during F's life and, after
     F's death, E holds for the use of D.
              However, if E did pay valuable consideration or was a blood relative of the
     grantor's, then no resulting use would be implied, so the grantor would have
     nothing. F would have the equitable life estate and E would have the legal fee
     simple absolute. E holds the fee simple absolute for F's use during F's life, but
     after F's death, E will not be holding for anyone else's use.

4.   Same facts as Question 3 but after the Statute of Uses. What estates do D, E and
     F have?

Answer:

     The first step is to determine what they would have prior to the Statute of Uses.

                                           98
     We have already done that.
             Next, we must determine if the Statute applies. It only applies when one is
     seised for the use of another. Here, E is seised for the use of F during F's life.
     So the Statute does apply while F is alive. F's equitable life estate is deemed to
     be a legal life estate. During the time that F has this "legal" life estate, E has no
     possessory right due to the effect of the statute. F's equitable estate has been
     executed into a "legal" life estate. Since by operation of the Statute, F's life estate
     is now "legal," then it must be subtracted out of D's legal title. In other words,
     executing F's equitable life estate into a "legal" life estate diminished, for all
     practical purposes, the amount of legal title which E was holding by the amount he
     was holding for the use of another.
             If D had an equitable reversion by the resulting use theory, then E would be
     seised for D's use too. So D's equitable reversion is deemed to be a "legal"
     reversion, i.e., it is executed into a "legal" reversion. The result is that F has a
     "legal" life estate.
             However, if there was no resulting use in D, then E was holding only for the
     use of F. Once F died, E would no longer be holding for another's use, so the
     Statute of Uses would no longer have any effect on E's title. That means that
     during F's life, F has the present possessory interest, a "legal" life estate. At the
     moment F dies, E will be entitled to the possessory interest and that will last
     infinitely.
             By definition, F must have a remainder in fee simple absolute. It is a
     remainder because it does not become possessory until the future, i.e., it is a
     future interest, which becomes possessory at the natural end of a life estate. It is
     in fee simple absolute because it will last infinitely long, i.e., once it becomes
     possessory, it will become a fee simple absolute.


6.   Before the Statute of Uses, J, the owner of land in fee simple absolute, conveyed
     by bargain and sale to K for life.

     (a)    Who holds for the use of another?

Answer:

     J holds for use of K. Remember that in a bargain and sale the grantor has
     accepted the bargained for valuable consideration and, therefore, is obligated to
     hold the property for the use of the buyer.

     (b)    What estates do J and K have?


Answer:

     K has an equitable life estate. It is equitable because the method of conveyance

                                           99
     is bargain and sale. It is a life estate because the grantor has expressed the
     intent that it last only for K's life and, laking words of inheritance, not be inheritable.
             J has the legal fee simple absolute. J had that legal interest at the
     beginning and has not used any method by which it could be transferred.
             When K's life ends, J still has the legal fee simple absolute and he is not
     holding for the use of any other person. There need not be an equitable
     remainder. Although this creates a gap in the equitable title, that is not a problem.
     Only gaps in seisin are prohibited.

7.   Same facts as Question 6, but after the Statute of Uses. What estates would J
     and K have had?

Answer:

     The Statute of Uses applies where one is seised for the use of another. J has the
     legal fee simple absolute, a freehold. So J has seisin. Also, J is seised for the
     use of K who has the equitable life estate. So the Statute applies.
             The Statute provides that the one with the use would be deemed to have in
     law what he would have had in equity. K has a life estate in equity so he would be
     deemed to have a legal life estate. In other words, his equitable life estate would
     be executed into a "legal" one.
             J has a legal reversion. J previously owned the fee simple absolute. Due
     to the conveyance and the application of the Statute of Uses, the "legal" life estate
     has now vested in K, and so must be subtracted out of J's estate. Another way to
     explain this is that after K's death, the Statute of Uses will no longer apply as J will
     no longer be seised to the use of another. Therefore J, the grantor, has only a
     future interest while K is alive, but that will ripen into a fee simple absolute upon K's
     death. That seems to fit the definition of a reversion, although technically he had
     the legal fee simple the whole time because the Statute of Uses only deemed K's
     estate to be "legal." It was only "as if" K had the legal life estate.

8.   Same facts as in question 7 above. K, having received a "legal" life estate
     conveyed his entire interest to M by feoffment. What did M receive?

Answer:

     If M received K's entire estate, then she received K's life estate. Where one has a
     life estate but the measuring life is another person (here it is K's life which
     determines the length of the estate), it is called a life estate pur autre vie. So K
     intended that M receive a life estate pur autre vie.
            A life estate is a freehold and K conveyed by a feoffment which is the proper
     method to transfer a legal freehold. So K intended that M receive a legal life
     estate pur autre vie. However, to create a legal freehold requires the transfer of
     seisin and K did not really have seisin, but that does not cause any problem due to
     the statute which provided that M could transfer seisin anyway.

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9.   A, the owner of fee simple absolute, conveyed the land to B for 999 years to the
     use of C and his heirs. This is after the Statute of Uses. What estate or interest
     does each have?
Answers:

       B has received a leasehold. That is not a freehold so no seisin is involved. That
       is why it could be conveyed without a feoffment ceremony.
               A intended that C receive an equitable estate which would last infinitely long
       and be inheritable, based upon the words of limitation and inheritance ("and his
       heirs"). So C received an equitable fee simple absolute.
               Since A has conveyed away only part of the fee simple absolute, he must
       have retained what was left, the reversion.
               B is holding for the use of another, but B does not have seisin. The Statute
       of Uses only applies where one is seised for the use of another, so it does not
       apply here. The result is that after the Statute of Uses, A would still have the
       reversion, B would have the legal leasehold. C would have an equitable fee
       simple absolute. The use would not be executed because no one is holding for
       the use of C.
               However, when the 999 years have passed, B's leasehold has ended and
       A's reversion is now a present possessory fee simple absolute. C still has the
       equitable fee simple absolute. After that moment, A would be seised for the use
       of C and the Statute of Uses would then apply and execute C's use. C would
       have in law what he would have had in equity, a "legal" fee simple absolute. That
       would mean that, for all practical purposes, A would have nothing.


                         II. Evading the Statute: A Use on a Use

          The Statute of Uses supposed to put an end to equitable estates, but it failed to do
so. Because the Statute was being applied exactly as it was written, landowners and
their lawyers soon found ways to evade the Statute by careful drafting. The Statute only
applied if one was seised to the use of another. As we have seen, seisin was involved
only with legal freeholds. A person with equitable title did not have seisin. Therefore, if
the conveyance was designed to have a person with equitable title hold for the use of
another, then the Statute of Uses would not apply. Having a person with only equitable
title, i.e., a use, hold for the use on another was called a use on a use, and the use on a
use would not be executed by the Statute of Uses.

       That sounds confusing. How could a person with equitable title hold for the use of
another. Remember equitable title was merely the result of two factors. (1) Equity the
court of conscience would enforce a moral obligation. (2) Equity considers done what
ought to be done. Nothing would prohibit a person with equitable title from becoming
morally obligated to hold that interest for the use of another. Nor would anything prevent
that obligation from vesting an equitable title in the one holding the use on a use.

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       An example of a conveyance establishing a use on a use is:

              A, the owner of land in fee simple absolute conveys by feoffment to B and
              his heirs to hold for the use of C and his heirs to hold for the use of D and his
              heirs.

B had received the legal fee simple absolute but would be obligated to hold for the use of
C. Therefore, C had received the equitable fee simple absolute. However, C would be
obligated to hold for the use of D. In other words, D's use is on C's. When the Statute of
Uses was applied, it applied only where one was seised for the use of another. Only B is
seised, and B is seised for the use of C. Therefore, C would have in law what he would
have had in equity. So C has a "legal" fee simple absolute because he would have had
an equitable fee simple absolute.

        But why does the Statute of Uses stop there. Why doesn't it also execute D's
equitable interest too. Remember, C is only deemed to have legal title, i.e., it is only "as
if" he had legal title. The Statute did not say that he really did have the legal title.
Technically C does not have seisin and so the Statute of Uses does not apply to the use C
is holding for D. This created a loophole through which the landowners and their lawyers
sought to evade the Statute. Because the Statute was so unpopular, the judges let them
get away with it. Employment of this technicality defeated the clear purpose of this
unpopular statute.

      A clever lawyer could always evade the Statute of Uses merely by drafting the
conveyance so that intended grantee received a use on a use. Eventually, the only
people limited by the Statute of Uses were those who did not have good lawyers.


Questions:

1.     Before the Statute of Uses, A, the owner of land in fee simple absolute, conveyed
       by bargain and sale to "B and his heirs."

       (a)    Who held for the use of another?

Answer:

       A held for the use of B because A had accepted the valuable consideration
       involved in a bargain and sale.

       (b)    What estates did A and B have?

Answer:


                                             102
     A had a legal fee simple absolute because only equitable title can be transferred
     by a bargain and sale. To pass legal title to a freehold would require the feoffment
     ceremony.
     B had an equitable fee simple absolute because that is what the grantor intended
     to transfer based upon the words of limitation and inheritance used here ("and his
     heirs").

2.   If the conveyance took place after the Statute of Uses, what estates would A and B
     have?

Answer:

     A is seised to the use of B, so the Statute of Uses would apply. Therefore B's
     equitable fee simple absolute would be executed into a "legal" fee simple absolute.
     An instant after the conveyance, for all practical purposes, A would have nothing
     due to the effect of the Statute of Uses.


3.   Before the Statute of Uses, C, the owner of land in fee simple absolute, enfeoffed
     "D and her heirs to the use of E and her heirs to the use of F and her heirs."

     (a)    Who holds for the use of another?

Answer:

     D held for the use of E who holds for the use of F. This sounds absurd and it
     would never have occurred before the Statute of Uses, but we have already
     learned that it was designed to evade the Statute.

     (b)    What estates or interests do C, D, E and F have?

Answer:

     D has a legal fee simple absolute. Before the conveyance, C did have the fee
     simple absolute to convey. C did use the method of conveyance by which a legal
     freehold like a fee simple absolute could be conveyed, i.e., a feoffment, and C
     apparently intended to convey a fee simple absolute to D based on the words of
     limitation and inheritance which C used (i.e., "and her heirs"). Therefore, D
     received a legal fee simple absolute.
             D holds for the use of E, so E has an equitable interest. The grantor, C,
     intended that interest be a fee simple absolute based upon the words of limitation
     which he used (i.e., "and her heirs"). So E has an equitable fee simple absolute.
             F has a use on a use because someone with only equitable title, E, is
     holding for F's use. This use on a use is in a fee simple absolute estate because
     that must be what the grantor intended based upon the words of limitation and

                                         103
     inheritance which she used. Since a use on a use would not have been
     intentionally created except to evade the Statute of Uses, the court would have to
     guess what the grantor really intended because a use on a use would not make
     any sense before the Statute of Uses.
             Since C has expressly transferred away the entire legal fee simple absolute
     and the entire equitable fee simple absolute, there is nothing left for C to have
     retained. Therefore, C has nothing.

4.   If the conveyance in Question 3 occurred after the Statute of Uses, what estates
     would C, D, E and F have?

Answer:

     The first step would be to see if the Statute of Uses would apply. To do that you
     would have to determine what each party would have prior to the Statute of Uses.
     We have already done that in question 3. C had nothing. D had the legal fee
     simple absolute. E has the equitable fee simple absolute. F has a use on a use
     in fee simple absolute.
             The Statute of Uses applies where one is seised to the use of another. D
     has the legal fee simple absolute, so D has the seisin and D is seised for the use of
     E. Therefore, the Statute of Uses applies.
             The Statute of Uses specifies that where one is seised to the use of another,
     the one with the use is deemed to have in law what he would have had in equity.
     So E is deemed to have given in law what she would have had in equity, which was
     an equitable fee simple absolute. So E has a "legal" fee simple absolute. In
     other words, E's equitable fee simple absolute would be executed into a "legal" fee
     simple absolute.
             Since E now has the "legal" fee simple absolute through the operation of the
     Statute, D could not have it. For all practical purposes, D must have nothing,
     although technically it would seem as if he still is holding seisin.
             D was the only one who was seised for the use of another, i.e., for E's use,
     so that is the only use to which the Statute applies. E was holding for the use of F,
     but E was not seised for the use of F. Even after the Statute of Uses executed E's
     equitable title into a "legal" title, E did not have seisin. It was only that the Statute
     deemed that the one with the use would be treated in law "as if" they had that title.
             This may seem like a ridiculous distinction unless you remember the
     context. The landowners were seeking a way to evade the Statute and, because
     the Statute was so unpopular, the judges were letting them get away with it.
             So E, having a "legal" fee simple absolute, was holding for the use of F.
     F's estate is no longer a use on a use because E's title has been executed into a
     "legal" one. F's estate is now a use on a "legal" title. So F has an equitable (i.e.,
     a use) fee simple absolute.
             C had nothing, prior to the Statute of Uses and the application of the Statute
     does not change that. C has nothing.


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                                   III. A Use after a Use

       The use on a use should not be confused with a use after use. The critical inquiry
under the Statute of Uses is whether one is seised to the use of another. A use on a use
was a method by which that inquiry could be answered in the negative. It was a method
by which the one holding for the use of another did not have seisin because he too was
only holding equitable title, and equitable title did not involve seisin.

       A use after a use involved uses which occurred sequentially, not concurrently as a
use on a use. Once again, the critical inquiry is whether one is seised for the use of
another. A use after a use does not necessarily produce a negative response. For
example, if A is seised for the use of B during B's life and thereafter for the use of C, then
C's use is after B's. If one is seised for the use of another, then the Statute of Uses would
apply and the use would be executed into a "legal" interest. In the example, A would be
seised for the use of both B and C, so both C's and B's uses would be executed.


Questions:

1.     Before the Statute of Uses, A enfeoffed "B and her heirs to the use of C for life and
       then to the use of D and his heirs." What interests or estates did A, B, C and D
       have?

Answer:

       B had received a legal fee simple absolute. It was intended to be a fee simple
       absolute because the grantor used the words of limitation and inheritance ("and his
       heirs"). A fee simple absolute is a freehold which involves seisin. The grantor
       used a feoffment to transfer the seisin and, thereby, transferred the legal fee
       simple absolute.
                B, however, held for the use of C during C's life. This is a use, so it is an
       equitable interest. Since its duration is C's life, it is a life estate. So C has an
       equitable life estate.
                After C's death, B would hold for the use of D. D, therefore, has an
       equitable interest. It does not become possessory until a future event, C's death.
       Therefore, it is a future interest. It becomes possessory at the natural termination
       of C's life estate so it is an equitable remainder. The use of the words of limitation
       and inheritance ("and his heirs") indicate that the grantor intended this interest to
       last infinitely long and be inheritable. Therefore, it is an equitable remainder in fee
       simple absolute. D's use follows C's, so it is a use after a use.
                A has nothing because he conveyed away all that he had.

2.     Same facts as Question 1 but after the Statute of Uses. What interests or estates
       would A, B, C and D have?


                                            105
Answer:

       B is seised for the use of both C and the use of D. First C will have the present
       equitable interest (his life estate) and then D will have the use. Because B is
       seised for the use of both, the Statute of Uses applies to both.
               The Statute of Uses provides that where one is seised for the use of
       another, the one with the use will be deemed to have in law what he would have
       had in equity. Since B is seised for both C and D, both will be deemed to have in
       law what they would have had in equity. C would have had an equitable life
       estate, so the Statute of Uses will execute that into a "legal" life estate. D would
       have had an equitable remainder in fee simple absolute, so that will be executed
       into a "legal" remainder in fee simple absolute.
                C and D between them, due to the Statute of Uses, have the entire "legal"
       fee simple absolute. So B must have "nothing" left because, for all practical
       purposes, he has no interest even though technically he still holds the seisin.


                      IV. Applicability of The Rules Regarding Seisin

       By passing the Statute of Uses (1536 A.D.), "legal" springing and shifting interests
were inadvertently made possible. The Statute of Uses required the court to treat a use,
an equitable estate, as if it were the same estate at law, but did not actually turn it into a
legal estate. Although the common terminology is that the springing or shifting use is
executed into a legal shifting or springing interest, remember it is only as if it were the
legal estate. Technically, it is not a legal interest, so even if it is a freehold, no seisin is
involved. Therefore, the rigid rules of seisin were not applied to these "as if legal"
freeholds. This was the triumph of a technicality being used to overcome the intent of the
statute! Clever lawyers to take advantage of the Statute's poor wording and judges let
them get away with it because the Statute was so unpopular.

Questions:

1.     After the Statute of Uses, A, the owner of the fee simple absolute, enfeoffed "B and
       her heirs to the use of C and her heirs." What estate or interest does each have?

Answer:

       The immediate effect of the conveyance would be to vest legal fee simple absolute
       in B. The grantor intended that B's estate be a fee simple absolute as evidenced
       by the use of the words "and her heirs." That legal freehold could be transferred
       by the means used, the feoffment ceremony.
              C received the equitable title, the use. The title was intended to be a fee
       simple absolute as evidenced by the words used by the grantor, "and her heirs."
       So C has an equitable fee simple absolute.
              The Statute of Uses applies where one is seised for the use of another. B

                                             106
     here is seised for the use of C so the Statute applies. It provides that the one with
     the use shall be deemed to have in law what she would have had in equity. C
     would have had an equitable fee simple absolute. So when the Statute applies,
     after the instant of a scintilla juris, C has a "legal" fee simple absolute.
     Consequently, there is nothing left for B, for all practical purposes, B has nothing.
2.   After the Statute of Uses, A, the owner of fee simple absolute, enfeoffed "B and his
     heirs to the use of C and his heirs as long as the land is used as a personal
     residence and then to the use of D and his heirs." What estate or interest does
     each have?

Answer

     A has transferred the legal fee simple to B because that is what he intended, based
     upon the words of limitation and inheritance used, and the method of conveyance,
     enfeoffment.
            C received an equitable interest. The words of limitation and inheritance
     used ("and his heirs"), A intended that the estate might last infinitely long and be
     inheritable. That means it is a fee simple. However, the other words of limitation
     indicate that the grantor intended that the fee simple be cut short if the condition is
     violated. Further, grantor has indicated that if the condition is violated, what
     remains of the fee simple should go to another grantee, D. That means that C's
     equitable fee simple is subject to a shifting (or executory) interest.
            D has the equitable shifting interest. If the interest does shift, the grantor
     intended that it last infinitely long and be inheritable because the grantor used the
     words of limitation and inheritance ("and his heirs") which indicate that intent. So
     D has an equitable shifting interest in fee simple absolute.
            Does that create a problem? A fee simple is a freehold. Freeholds
     involve seisin. Seisin could not shift from C to D because a rule prohibits seisin
     from shifting (or springing). But that rule does not apply to C and D because they
     have equitable freeholds, so no seisin is involved.
            Therefore, B has the legal fee simple absolute, C has an equitable fee
     simple subject to a shifting interest, and D has the equitable shifting interest in fee
     simple absolute. C's interest could also be called an equitable fee simple subject
     to an executory interest. D's interest could also be called an equitable executory
     interest in fee simple absolute.
            The Statute of Uses applies where one is seised for the use of another.
     Here B has a legal freehold which means he has seisin. He is holding for the use
     of C and D who have equitable titles. So the Statute applies.
            Under the Statute, where one is seised for the use of another, the one with
     the use is deemed to have in law what he would have had in equity. So C is
     deemed to have a "legal" fee simple subject to a shifting interest. D is deemed to
     have a "legal" shifting interest in fee simple absolute.
            Does that create a problem? A legal fee simple is a freehold and freeholds
     involve seisin. Seisin could not shift from C to D because a rule prohibits seisin
     from shifting (or springing). But that rule does not apply to C and D because they

                                          107
     do not really have legal freeholds. They are only deemed to have freeholds.
     Their freeholds are only "legal." So no seisin is involved and the rule prohibiting
     seisin from shifting does not apply.

3.   A enfeoffs "B and his heirs to the use of C for life and 1 day later to the use of D and
     her heirs." B is A's son. What estate or interest does each have?


Answer:

     A clearly intended to transfer the legal fee simple absolute to B as evidenced by
     the words of limitation and inheritance which he used ("and his heirs"). He used
     the appropriate method to transfer legal freehold such as a fee simple absolute.
     So, B received a legal fee simple absolute.
             A intended that C receive only a use, an equitable interest. A intended that
     interest to last only for C's life, so C received an equitable life estate.
             The grantor did not specify who, if anyone, would have the an equitable
     interest when C died. Because B is A's son, a blood relative, there is no implied
     intent that B hold for A's use beginning at that moment, i.e., there is no resulting
     use. Therefore, when C dies, B will not be holding for anyone use. He simply
     has legal title which is not subject to anyone's outstanding equitable interest.
             However, one day after C's death, D's equitable interest begins. It does
     not cut short any interest of the grantor so it is not a springing interest. In fact, it
     means that B must now hold for D's use. So an interest has shifted from B to D.
             A intended that D's equitable shifting interest would be inheritable and last
     infinitely long as evidenced by the words of limitation and inheritance which he
     used ("and his heirs"). So D has an equitable shifting interest in fee simple
     absolute.
             The conclusion is that B has a legal fee simple absolute, C has an equitable
     life estate, and D has an equitable shifting interest in fee simple absolute. A,
     having conveyed away his entire estate, has nothing.
             Since B is holding for the use of C and D, the Statute of Uses applies. C
     and D would be deemed to have in law what they would have had in equity. So C
     has a "legal" life estate. D has a "legal" shifting interest in fee simple absolute.
             By the process of subtraction we see that during the one day following C's
     death, B will hold the legal fee simple absolute and not be holding it for the use of
     any other person. At that time in the future, B will have a possessory interest for
     one day, until the "legal" title shifts to D. So B has a future interest which
     becomes possessory at the end of a life estate. Since B is a grantee, that future
     interest would be called a remainder. It is a remainder in fee simple subject to a
     shifting interest because it would go on forever and be inheritable if it did not shift to
     D.
             Therefore, C has a "legal" life estate. For all practical purposes, B has a
     legal remainder subject to a shifting interest, and D has the "legal" shifting interest
     in fee simple absolute. Since the shifting interest in a freehold does not involve

                                            108
     seisin (because it is only deemed to be "legal" and is not truly a legal estate), it
     does not violate the rule that seisin cannot shift.

4.   A enfeoffs "B and her heirs to the use of C and his heirs, C's estate to begin as
     soon as C takes up residence on the land." B is not related to A and B did not pay
     for this transfer. What interest or estate does each have?

Answer:

     A intended that B receive a fee simple absolute based upon the words of limitation
     and inheritance used ("and his heirs"). Because A conveyed by a feoffment, B's
     fee simple absolute is a legal estate.
             Similarly, A intended that C receive a fee simple absolute based upon the
     words of limitation and inheritance used ("and his heirs"). However, A expressed
     the intent that C's estate not begin immediately, but be delayed until a time in the
     future. Thus, C has an equitable future interest in fee simple absolute. Which
     future interest it is will depend on the interest which precedes it. So we must
     figure that out next.
             B did not pay for this land and B is not a blood relative of A's. So A must
     not have intended to make a gift of the land, until C takes up residence there, to B.
     The implication is that A must have intended to have a resulting use for his own
     benefit. So A has an equitable interest beginning immediately and lasting until C
     takes up residence on the land. That might never happen, so A's interest could
     last infinitely long. That means A's interest must be a fee simple. However, it
     might be cut short whenever the condition is satisfied at which time the right to
     possession will spring (from A, the grantor) to C. So A's interest must be an
     equitable fee simple subject to a springing interest. C's future interest is,
     consequently, an equitable springing interest in fee simple absolute.
             B is seised for the use of A and C, so the Statute of Uses applies. A and C
     are deemed to have in law what they would have had in equity. A has a "legal" fee
     simple subject to a springing interest. C has the "legal" springing interest in fee
     simple absolute. [Remember that springing and shifting interests can also be
     called executory interests.] By the process of subtraction, we can see that
     executing the uses has left B with, for all practical purposes, nothing.
             C's "legal" shifting freehold does not violate the rule against seisin springing
     and shifting because this "legal" estate does not involve seisin. Technically, B still
     has the seisin.

5.   After the Statute of Uses, A, the owner of fee simple absolute, conveyed by
     bargain and sale to "B and his heirs to begin in 20 days." What estate or interest
     does each have?

Answer:

     A conveyed by a bargain and sale. That means that seisin did not pass because

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      that could only be accomplished by feoffment. B got an equitable interest
      because A, having accepted valuable consideration, would be morally obligated to
      convey. Equity would enforce that obligation and would, in fact, treat the
      conveyance as if it had already been made. So B would receive an equitable title.
              B's equitable interest was intended to last infinitely long and be inheritable
      based upon the words which the grantor used to express his intend ("and his
      heirs"). But the words of limitation "to begin in 20 days" reveal that the grantor
      intended to transfer a future interest, not a present one. To determine what type
      of future interest it is we must determine what estate proceeds it.
              A still has the legal fee simple absolute because he has not conveyed it
      away by feoffment. So B's interest must spring out of the grantor, A, at that event.
      So B has an equitable springing interest in fee simple absolute.
              Since A is holding for the use of B, the Statute of Uses applies and executes
      B's equitable interest into a "legal" springing interest in fee simple absolute.
      When this is subtracted from A's legal fee simple absolute, A is left with a fee
      simple subject to a springing interest. [Remember that a springing interest can
      also be called an executory interest.]
              The rule against seisin springing does not apply because B never really
      gets seisin. He has only a "legal" interest due to the effect of the Statute.



                                     V. Active Uses

         As we have seen, the Statute of Uses was an unpopular statute and so courts
interpreted it narrowly. They created a very important loophole when they held it to be
inapplicable to an active use. An active use was one where the one who held the legal
title for the use of another was also burdened with affirmative duties to perform, such as
collecting the rent and distributing it to the equitable owner. The one who had
undertaken these duties was morally obligated to perform them. That was an obligation
which equity would enforce, but it would be impossible to enforce the obligation if the
Statute of Uses eliminated the title of the one with the obligation. Consequently, courts
concluded that the Statute of Uses would not execute an active use.

Questions:

1.    A executed a conveyance by feoffment using the following language: "to B and her
      heirs to the use of C and her heirs. Under this conveyance B is hereby obligated
      to supervise the maintenance of the property, to enter into leases with desireable
      tenants, to collect rents, to pay taxes and other debts arising from the property out
      of the rental income, and to invest the remaining rents. Upon C's 25th birthday, B
      is to convey the property to C and to transfer to her all the accumulated rent and
      income which the rent has earned." This was after the Statute of Uses. What
      estate or interest does each have?


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Answers:

     It is clear that A intended that B receive the fee simple absolute based upon the
     language which A used (i.e., "and her heirs"). Because A conveyed by feoffment,
     the proper means to transfer a legal freehold, A received a legal fee simple
     absolute.
              A intended that C receive only a use, i.e., an equitable interest. That
     interest will be a fee simple absolute because A used the words of limitation and
     inheritance ("and her heirs") which evidence that intent. So C received an
     equitable fee simple absolute.
              B, having a legal freehold, has seisin and is holding it for the use of another,
     C. The Statute of Uses would ordinarily apply, but there is something additional
     here. A has imposed affirmative duties on B. B is obligated to enter leases,
     collect rents, pay the taxes and other debts out of the collected rents, invest what is
     left of the rents and, when C turns 25, convey the property to C along with all
     accumulated income. How could B do all these things if the Statute of Uses were
     to execute C's use into a legal title? It would be impossible. So the courts
     concluded that the Statute of Uses would not apply to this kind of situation.
     Because this is an active use which imposes affirmative duties on the one holding
     seisin, the Statute of Uses does not execute it.

2.   A conveyed by bargain and sale to "C and her heirs as long as C keeps the old
     family home standing and in good repair on the land." This is after the Statute of
     Uses. What estate or interest does each have?

Answer:

     A intended to transfer title to C. Because A used a bargain and sale, C received
     only an equitable title arising from the moral obligation to convey which arose when
     A accepted the bargained for consideration which C paid for this land. The words
     "and her heirs" are the traditional words of limitation and inheritance to indicate that
     A intended that C receive a fee simple.
             This fee simple is limited, however, by the words "as long as C keeps the
     old family home standing and in good repair on the land." C's estate could be cut
     short by her failure to live up to the requirements of this condition.
             A has not specified that any other person receive what is left of the fee
     simple absolute if the condition should be violated, so A must have intended that it
     revert to her. A fee simple which reverts on the occurrence of a condition is called
     a fee simple determinable. So C has an equitable fee simple determinable.
             A has the legal fee simple absolute because she has never conveyed any
     part of the legal title. If C violates the condition, then C's fee simple determinable
     would end. From that moment on, A would not be holding for the use of any
     other person.
             A, having the legal fee simple absolute, has seisin. A is holding that seisin
     for the use of another, C. So the Statute of Uses would apply. C would have in

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law what she would have had in equity, so C has a "legal" fee simple determinable.
       A has what is left of the fee simple absolute after C's "legal" fee simple
determinable is subtracted out. That leaves A, for all practical purposes, with a
possibility of reverter.
       But, you may ask, isn't this an active use? It does place an active obligation
on C to maintain the old family house. But in this case the obligation is on the one
with the use. Executing the use will not make it impossible for C to live up to this
obligation. That is what distinguishes this situation from an active use. An active
use is one where the one holding the seisin has affirmative duties which she could
not perform if the Statute were to be applied. This is not an active use, so the
statute does apply.




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