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History Of Uses And Trusts Notes

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History Of Uses And Trusts Revision

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Legal History Revision Notes


The History of Uses and Trusts Importance: + Maitland: "Of all the exploits of Equity the largest and the most important is the invention and development of the Trust. It is an "institute" of great elasticity and generality; as elastic, as general as contract. This perhaps forms the most distinctive achievement of English lawyers. It seems to us almost essential to civilisation, and yet there is nothing quite like it in foreign law".
+ Milsom: The importance of trusts should not mislead: in thinking of uses as the ancestor of trusts we are in danger of looking for something too big. Do not look for the later, fully formed, institution of the trust in the history. 'Use': Concerned with feoffments to uses of land, not chattels. In such a transaction lands are conveyed to a person/persons (called feoffee/feoffees to uses) along with a provision that they hold for the benefit of (ad opus) a beneficiary. Beneficial enjoyment of land is thereby separated from the legal title for the feoffee is a mere passive recipient of legal title (and so has seisin), often with no active duties to perform, who is not intended to benefit from the transaction in any way. His basic duty is the passive one of allowing the cestui que use to take the profits of the land. Sometimes the feoffee might have active duties imposed upon him (i.e. to reconvey the land to another). Such direction would create an active use. Passive uses more important in development of law of uses. Evidence of uses found in the Domesday book and they were used commonly in the 13th c. A use is like bailment of a chattel. Same motives: my friend can keep it safe, or going abroad and cannot take it with me, or to keep a valuable thing out of hand of my creditors. I can give friend instructions to do positive things with it. Key uses of the use: Primarily used for making family provisions - control 'intergenerational uses' (+ Biancalana). E.g. Lord has a property which he grants out some of to T, in return for services. When T dies the feudal incidents will be due. T wants to make his death legally irrelevant, so on his death bed T coveys the land by substitution to X, instructing X to convey the land to T's son. Hence the lord gets no incidents when T dies. However, there is the danger for T that X might die. So when T is healthy he conveys to a group of people. He may even create a mortmain conveyance, which is not caught by legislation. Feoffees would hold the land according to T's instructions. It can be used as a way of defrauding the lord of out his feudal incidents. Why was there a prevalence of feoffments to uses in the Middle Ages? + Simpson:

The Crusades encouraged the practice by taking landowners out of the country and making it imperative that they left somebody at home in control of their lands. The friars of the Order of St. Francis found it convenient that property should be held by others to their use. They used, but did not own, the buildings they occupied. Dishonesty played some part - One who was proposing to indulge in treasonable enterprises could seek to avoid the chance of his lands being forfeit to the Crown for treason by conveying them to a blameless confederate, to be held to his use. Like modern tax evasion. By 15th c. clear that most uses were created for one of four main reasons: (i) Could be employed to assist in simple fraud; (ii) Could be used to avoid feudal duties; (iii) Could be used to gain a power of devise over land; (iv) Could be used to facilitate the creation of settlements of land.

 Common law did not recognise uses. So if the group of feoffees acted against T's wishes, the agreement was enforceable at common law. Could not use covenant after 14th c.

Chancellor incapable of devising suitable remedies when same sort of transaction was carried out with land.

Legislature found it difficult to prevent such transactions being used for fraudulent purposes. Other situations where uses were used: (i) friars; and (ii) monks. 1

Legal History Revision Notes


(i) Friars (followers of St. Francis) - Charitable provision: We find the phrase ad opus famously in the 13th c. in the case of the Franciscan friars, living 'in obedience, without property and in chastity'. Rule (1223) that friars would acquire nothing of their own, but they needed somewhere to live. Solution: Make a conveyance of freehold land to a feoffee for uses to hold for the Franciscans so they can enjoy it. As early as 1225 in Oxford and London land was held 'ad opus' for friars. In 1308 it has been found that an action was brought at common law for widow's dower in relation to land in the parish of St. Ebbes in Oxford. The friars had only the 'use and easement' of land so could not be sued. (ii) Monks - Monks formed corporations (i.e. abbeys) so they could own benedicitim houses, without individual monks owning it. Issue: The effect on feudal incidents of making subinfeudations to monasteries in return for spiritual services.
 Statute of Mortmain/Statute De Viris Religiosis (1279): If the friars employed uses, so did the monks in the aftermath of the statute - said land should not be subinfeudated to the church. From 1280 you could obtain a royal licence for a fee to convey land by subinfeudation to a monastery. Fee must be raised, which takes time. In the interval T would convey land to feoffees to hold for use of the monks of the monastery. Feoffers would not pay money over if monks stopped praying for me. This arrangement with monasteries was intended to be lasting - it is a relationship, rather than simply a transaction. When T received title the feoffees could convey back. But later I think, maybe I should not bother with paying for the licence. I should simply convey ad opus to the use of monastic houses. Continues until 1391.
 Second Statute of Mortmain, 15 Ric. II, c. 5 (1391): Passed due to the loss of royal revenue/incidents due to uses. Provided that land held to the use of religious houses was within the scope of the mortmain legislation. Brought feoffments directly to monasteries within the scope of transactions requiring a licence.
---------------------------------------------------------------------------------------------------------------------------------------------The Development of Uses - 'Grant and Re-grant' Typical situation: 14th c: Tenant in fee simple of greenacre wants to change his estate. Maybe he wants to be a T for life jointly with his wife, with a remainder in tail to a younger son (older son takes land). He cannot achieve that on his own. He must convey his fee simple to someone else on the basis it will then be re-conveyed on the term of the settlement (known as 'grant and re-grant'). That was not intended to last, it was a transaction, not a relationship - reconveyance will be made soon after the original conveyance. Problem: If the tenant in fee simple has conveyed the land to his friend for him to re-grant, what if his friend does not re-grant? How could he enforce this and avoid the risk?
Solutions: 1) Strict common law condition - E.g. I convey land to friend, on the condition that he re-convey. Effect is to reserve for myself a proprietary right in the land (right of re-entry) with the result that if the condition is broken I may simply enter the land and take it back. So the friend has a conditional fee simple - if you breach then I re-enter. Will work, but issues: a) Must declare terms of the condition when I make the original grant. Cannot change my mind later. b) The right of re-entry is a proprietary interest, so if I die before re-grant the right descends to my heir. The point of the settlement may have been to take the right away from the heir and transfer the remainder to my younger son after myself and my wife die. c) This is not a mechanism to make you re-convey, it is just a mechanism for me to get land back in fee simple if you do not re-convey.

2) Trust the friend, so no need for an enforcement mechanism - Has benefit of making it plain that my direct heir 2

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