2.
In order to create a use, there must always be a good Consideration;
though, when once raised, it may be passed by grant to a stranger,
without consideration. Doct. & Stu. , Dial. ch. 22, 23; Rob. Fr.
Conv. 87, n.
3.
Uses were borrowed from the fidei commissum (q. v.) of the civil law;
it was the duty of a Roman magistrate, the praetor fidei commissarius,
whom Bacon terms the particular chancellor for uses, to enforce the
observance of this confidence. Inst. 2, 23, 2.
4.
Uses were introduced into England by the ecclesiastics in the reign of
Edward Ill or Richard II, for the purpose of avoiding the statutes of
mortmain; and the clerical chancellors of those times held them to be
fidei commissa, and binding in conscience. To obviate many
inconveniencies and difficulties, which had arisen out of the doctrine
and introduction of uses, the statute of 274 Henry VIII, c. 10, commonly
called the statute of uses, or in conveyances and pleadings, the
statute for transferring uses into possession, was passed. It enacts,
that "when any person shall be seised of lands, &c., to the use,
confidence or trust of any other person or body politic, the person or
corporation entitled to the use in fee simple, fee tail, for life, or
years, or otherwise, shall from thenceforth stand and be seised or
possessed of the land, &c., of and in the like estate as they have
in the use, trust or confidence; and that the estates of the persons so
seised to the uses, shall be deemed to be in him or them that have the
use, in such quality, manner, form and condition, as they had before in
the use." The statute thus executes the use; that is, it conveys the
possession to the use, and transfers the use to the possession; and, in
this manner, making the cestui que use complete owner of the lands and
tenements, as well at law as in equity. 2 Bl. Com. 333; 1 Saund. 254,
note 6.
5.
A modern use has been defined to be an estate of right, which is
acquired through the operation of the statute of 27 Hen. VIII., c. 10;
and which, when it may take effect according to the rules of the common
law, is called the legal estate; and when it may not, is denominated a
use, with a term descriptive of its modification. Cornish on Uses, 35.
6.
The common law judges decided, in the construction of this statute,
that a use could not be raised upon a use; Dyer, 155 A; and that on a
feoffment to A and his heirs, to the use of B and his heirs, in trust
for C and his heirs, the statute executed only the first use, and that
the second was a mere nullity. The judges also held that, as the statute
mentioned only such persons as were seised to the use of others, it did
not extend to a term of years, or other chattel interests, of which a
termor is not seised but only possessed. Bac. Tr. 336; Poph. 76; Dyer,
369; 2 Bl. Com. 336; The rigid literal construction of the statute by
the courts of law again opened the doors of the chancery courts. 1 Madd.
Ch. 448, 450.
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