Professor John Mee has recently consideredFootnote 1 “the retention approach” to “automatic” resulting trusts,Footnote 2 characterised by Mr Hackney as “proprietary arithmetic”:
If I give land to trustees on trust for A for life, remainder to the first child to be born to A after the making of the gift, and A has no such child, the land will be held on trust for me after A's death. This is called a resulting trust, though … it does not spring back in any theoretical sense. This rule does not depend upon a presumption of intention, but on a simple process of proprietary arithmetic – what I once had and have not granted away, I keep.Footnote 3
This approach faces the obstacle that “the ideas of ‘locating’ the beneficial interest, or engaging in ‘proprietary arithmetic’ concerning the beneficial interest, presuppose the existence of a separate beneficial interest under a subsisting trust”.Footnote 4 As Mr Swadling put it,
the settlor generally has no equitable interest to retain. Suppose I convey my fee simple … to a friend to hold on trust for “such objects of benevolence and liberality as he in his absolute discretion should most approve of.” The trust will fail for want of objects and the friend will hold the title for me on resulting trust. But I have “retained” nothing. At the beginning … I had a fee simple title to land. At the end … that title is held by my friend. What I now have is an interest under a trust, something I did not have before.Footnote 5
While acknowledging this difficulty, Professor Mee has “mine[d] the early law reports to show that there is more to the idea that the beneficiary of a resulting trust ‘retains’ an interest in the trust property than modern writers generally recognise”,Footnote 6 while concluding nevertheless that retention, “though strongly rooted in authority, does not appear to provide a satisfactory theoretical explanation for the resulting trust”:Footnote 7 “[t]he interest of the beneficiary under a trust is, in an important sense, ‘not carved out of a legal estate but impressed upon it’”, and it is necessary “to look beyond the retention idea for a satisfactory theoretical explanation of the automatic resulting trust”.Footnote 8 Professor Mee identifies the tension between “the weight of historical authority in favour of [the retention theory]”Footnote 9 and its failure to “provide a satisfactory theoretical explanation for the resulting trust”,Footnote 10 but does not resolve it. Resolution, it is suggested, requires further investigation of the “complexity surrounding the usage of the terms ‘use’ and ‘trust’ before and after the Statute of Uses 1536”, which, as he accepts, is understated in Professor Mee's argument.Footnote 11 A full history of “automatic” resulting trusts (and of resulting trusts more generally) will require consideration of forms of freehold title other than the fee simple, together with chattels real and personalty, and detailed examination of the relevant case law.Footnote 12 This article's more limited aim is to begin the process by examining the structure of uses and trusts of the freehold estate in fee simple, to which Professor Mee's analysis is directed.
Observing that “[a] use and a trust may essentially be looked upon as two names for the same thing”,Footnote 13 Professor Mee argues that resulting uses could be understood in terms of retention; that the doctrine of the old use to which the retention analysis of resulting uses gave rise “applied equally in relation to resulting trusts”;Footnote 14 and that in consequence “when Lords Upjohn, Wilberforce and Reid spoke in Vandervell of the beneficial interest under a resulting trust ‘remaining’ in the settlor, they were reflecting an approach which had consistently been adopted by Equity for four centuries”.Footnote 15 But while the doctrine of the old use – rooted in the period before the Statute of Uses 1536Footnote 16 – was applied to resulting trusts after 1536, in important respects uses and trusts were not the same. Before 1536 the transferor of a fee simple in circumstances giving rise to a resulting use could be conceived as having retained the use which had previously existed in him distinct from the legal title. This analysis was not directly applicable to trusts after 1536, and from application of the old rules to a new situation sprang the tension between “the weight of historical authority in favour of [the retention theory]”Footnote 17 and its failure to “provide a satisfactory theoretical explanation for the resulting trust”.Footnote 18
Retention and Resulting Uses Before the Statute of Uses
I have suggested elsewhere that the word “use” has more than one meaning in English law.Footnote 19 In one sense “to the use of” simply means “for the benefit of”,Footnote 20 but in the context of freehold land “use” also has a narrower meaning, more germane to present purposes, under which the use was conceived as “thinglike” and distinct from the “possession” or legal title, and thus capable of retention by the transferor following conveyance of the legal title.Footnote 21
A. The “Thinglike” Use
It became the practice in late medieval England to make feoffments of freehold land to the uses of a last will,Footnote 22 allowing, in effect, a will of such land, otherwise impossible at common law.Footnote 23 Such uses were passive, the feoffees being seised of the land, and the feoffor enjoying it as if an owner until his death.Footnote 24 Such uses became so common that a feoffment with no consideration or use expressed was understood to have been made to the use of the feoffor.Footnote 25 As Thomas Audley observed in 1526, “where no use is expressed in the consideration of a deed the law expounds the use for the benefit of he from whom the possession is departed”.Footnote 26
In this context developed the “thinglike” use.Footnote 27 As Professor Mee notes,Footnote 28 before the Statute of Uses 1536 the owner of freehold land could be conceived as having, in Christopher St German's words,
two things in him, that is to say, the possession of the land which after the law of England is called the frank tenement or the free hold, and the other is authority to take thereby the profits of the land, wherefore it follows that he that has land and intends to give only the possession and freehold thereof to another and to keep the profits to himself ought in reason and conscience to have the profits seeing there is no law made to prohibit, but that in conscience such reservation may be made. And so when a man makes a feoffment to another and intends that he himself shall take the profits, then that feoffee is said [to be] seised to his use that so enfeoffed him.Footnote 29
The “use” in this sense was the “authority to take … the profits of the land”. Every owner of freehold land had such a use, together with the “possession”, that is, the legal title,Footnote 30 and it became common to speak of one being seised of land to his own use:Footnote 31 in 1526 Audley gave repeated examples of dealings with land by one “seised to his own use”,Footnote 32 and twenty years earlier Robert Rede J.C.P. had discussed a sale of land by “one [who] is seised to his own use”.Footnote 33
By the early sixteenth century the judges – addressing uses through the statute 1 Richard III, c. 1 (1484), which gave cestui que use power in some cases to convey a legal titleFootnote 34 – had begun to conceive of “the use” as an entity. Uses indeed turned upon personal trust and privity: “if there is no privity or trust there can be no use”,Footnote 35 and feoffees to uses might be called “feoffees on trust”,Footnote 36 but trust and confidence co-existed with a perception that the beneficiary had a form of property in the land. In about 1490, reading on the statute 1 Richard III, c. 1 (1484), Gregory Adgore repeatedly referred (in English) to cestui que use as the “owner” of the land;Footnote 37 Audley made the same point in 1526:
a use is a property or ownership of land or something else, real or personal, depending solely on confidence and trust between those who are in actual possession and are accounted owners by the common law of such lands and things whereon the use depends, and those who have a use in the same thing whereon the use depends;Footnote 38
and before 1536 the judges had come to discuss uses in “thinglike” terms. So it could be said that before the statute of 1484 a will made by “he who had the use” was not good;Footnote 39 that feoffees might claim “the use of [the] land to the use of the issue in tail”;Footnote 40 that it was a question “what estate [someone] had in the use”;Footnote 41 and that “the use in fee descended” to one who thereupon entered the land.Footnote 42 As Maitland put it, “‘the use’ is turned into an incorporeal thing”.Footnote 43
The position was summarised almost a century ago by Edgar Durfee:
[a]t the time of the Statute [of Uses], English land was so largely held to uses, (passive uses, of course) that property in land was thought of as a duality – seisin and use. Even when the equitable relation of feoffee and cestui did not obtain, when the legal estate was unencumbered by an outstanding use, the idea of duality remained and the tenant was said to be seised to his own use, the use being characterized as “conjoined” to the seisin. When the use was “divided” from the seisin, the cestui usually had possession, that tangible element of property which at that day, even more than now, approximated to ownership.Footnote 44
This being so, the tenant seised to his own use might transfer seisin to another while retaining the use.
B. Separating Possession and Use
As Durfee suggested, the use might be “conjoined” to the seisin (or possession), or “divided” from it,Footnote 45 as, for example, by a feoffment not disposing of the whole of the use. Professor Mee refers to Coke's observation that
whosoever is seised of land, hath not only the estate of the land in him, but the right to take profits, which is in nature of the use, and therefore when he makes a feoffment in fee without valuable consideration to divers particular uses, so much of the use as he disposeth not, is in him as his ancient use in point of reverter.Footnote 46
Here is the concept of retention of the “ancient” or “old” use, which plays a large part in Professor Mee's argument. As Charles Sweet put it of the period before 1536 “every feoffment was presumed to be made for the benefit of the feoffor, so that the feoffee took nothing but the seisin or legal estate; the ‘use’ or beneficial ownership did not pass by the feoffment, but remained in the feoffor”.Footnote 47 And it followed that “if, after 1536, a man seised in fee conveyed the land to feoffees without showing any intention of giving them the beneficial ownership, the use of the fee remained in him, and the statute [of uses] gave him back, not the same estate as he had before, but a similar estate, corresponding to the use which remained in him … In the language of Lord Coke, he was in of the old use.”Footnote 48
Sweet supposed that the doctrine of the old use, being a “common law doctrine”, could not have pre-dated the Statute of Uses,Footnote 49 but its roots may lie before 1536.Footnote 50 In the reports of John Caryll, junior, made between about 1527 and 1537 it is noted that “where a feoffment is made without consideration and no wrong is done upon the feoffment, this shall be to the first use. But if any wrong is done it shall always be taken to the use of the feoffor”,Footnote 51 while, in contrast, “if a tenant in tail makes a feoffment without consideration, the feoffees shall be seised to the use of feoffor and his heirs and not to the first use”.Footnote 52 This may appear a distinction without a difference, but reflects the doctrine of the old use: where a feoffment is “to the first use” the feoffor retains the use – the old, or “first” use – which was in him before the feoffment; in contrast, where a feoffment is made, or taken to have been, “to the use of the feoffor”, the feoffor acquires a new use, distinct from that which was previously in him.
The same point arose in the Common Pleas, probably in 1535. “Before the Statute of Uses someone was seised of land which came to him by descent from his mother, and he made a feoffment in fee to his own use.Footnote 53 The question is, whether this land shall descend to the right heirs on his father's side or to the heirs on his mother's side?” Serjeant Willoughby “said that it must descend to the heirs on his mother's side”. Thomas Bromley disagreed, “for when he has made a feoffment to his use he is in as by a new estate; for it is like a purchase, which is a new estate. Since he is in by a new estate, the land ought to descend to the right heirs on his father's side.” Serjeant Browne was not convinced: “Suppose someone is seised of land in gavelkind or borough English, and makes a feoffment in fee to another: the land shall descend to the right heirs by the custom and not to the heirs by the common law.”Footnote 54 Browne's point was agreed by the whole court, and he repeated it as a judge in 1542: “if someone makes a feoffment without consideration of land whereof he is seised from his mother's side, the use shall be to the same heir and shall follow the tenancy. The law is the same of a feoffment of lands in gavelkind”, but one of the serjeants said “he had seen a book in which it is adjudged that the land ought to descend to the heirs on his father's side”.Footnote 55
The discussion in 1535 concerned a feoffment made “before the Statute of Uses”. As Professor Mee shows, the point did not cease to be relevant with the passing of the statute: the concept of retaining an old use, and the consequent question of descent ex parte paterna or materna, continued to be discussed for centuries in relation both to uses executed by the Statute of Uses and in relation to trusts.Footnote 56
The Doctrine of the Old Use After 1536
The Statute of Uses executed uses, rejoining use and possession by transferring possession from feoffees to cestui que use. Executed uses now took effect at common law – as was said in argument in the King's Bench in Davis v Speed (1692), “this is a conveyance by way of use, which before the statute [of uses] was considered only as a trust; but now by uniting the possession to those uses, they are governed by the known rules of the common law”Footnote 57 – while unexecuted uses continued to take effect in equity, forming the basis of the modern law of trusts.Footnote 58 As Professor Mee argues, the doctrine of the old use continued to be applied to uses after 1536, and was applied “equally in relation to resulting trusts”.Footnote 59 But, as will be seen – uses and trusts being not in all respects the same – application of the doctrine of the old use to resulting trusts could not be explained on the same basis as was possible in the case of resulting uses.
A. Uses and the Doctrine of the Old Use after 1536
“[T]he statute [of uses] did not, nor indeed could, alter the nature of the use”,Footnote 60 and the concept of retention of the old use was applied to executed uses at common law after 1536. As has been seen, Coke said that
whosoever is seised of land, hath not only the estate of the land in him, but the right to take profits, which is in nature of the use, and therefore when he makes a feoffment in fee without valuable consideration to divers particular uses, so much of the use as he disposeth not, is in him as his ancient use in point of reverter.Footnote 61
Coke likewise observed elsewhere that “when the feoffor disposeth of the profits for a particular time in praesenti, the use of the inheritance shall be to the feoffor and his heirs, as a thing not disposed of”.Footnote 62
Other examples may be given. In Abbot v Burton (1708) the question arose in the Common Pleas of the effect of a common recovery of an estate in fee simple: if husband and wife were seised of lands in right of the wife which she had by descent on the part of her mother (ex parte materna), and suffered a common recovery to the use of the husband and wife for life, and then to the heirs of their two bodies, remainder to the right heirs of the wife, and died without issue, should the land pass to the wife's heirs ex parte materna or ex parte paterna (on the part of the father)? Judgment was for the heirs ex parte materna, Trevor C.J. giving the opinion of the court that
[b]efore [the Statute of Uses], the law considered the estate of the land and the use of the land as two distinct things; and therefore before that statute, if a man had made any conveyance … he might therein by express limitation have declared the use of the land; or if there were no express limitation, the law gave it back to him again; for he was not to pass away the pernancy of the profits, without some consideration, or estoppel, by express limitation; so that a man might at common law have separated the use and the estate … then comes this statute [of uses] … This statute executes the possession of the land in the same plight and manner as the use was before; therefore as this conveyance is, this ancient use which results back, was not a new use; for it must be an old use, if it result back as not disposed of, and so much of the ancient use still remains in him as was undisposed of. Now if the use would have gone this way before the statute, it will still go the same way since the statute. It is the same thing whether the antient use comes back by implication of law, or by limitation of the party.Footnote 63
The decision in Abbot v Burton was accepted in the King's Bench in Roe d. Crow v Baldwere (1793).Footnote 64 Counsel repeated Coke's observation that “so much of the use as he disposeth not, is in him as his ancient use in point of reverter”, observing that “The principle … as to freeholds, is that the old use remained, and that the statute [of uses] gives the legal estate the same quality” as the unexecuted use had.Footnote 65
And in the following year, in his notes to A Treatise of Equity, John Fonblanque observed,
[w]e have already had occasion to refer to the doctrine of resulting uses, where no consideration or declaration of the uses appears on the conveyance, and the principle upon which an use will result in those cases, namely, that so much of the use as a man does not dispose of remains in him, extending to cases where a man makes a feoffment, or other conveyance, and parts with, or limits only, a particular estate, and leaves the residue undisposed of, it follows, that where there is a feoffment to particular uses, the residue of the use shall be to the feoffor.Footnote 66
The doctrine of the old use, and with it the concept of such of the use as was undisposed of remaining in the grantor,Footnote 67 was well known long after 1536: as Charles Sweet put it in 1919, in the last days of the Statute of Uses,Footnote 68
[t]he doctrine of the old use is still in force, … its true nature is obscured by the name of “resulting use”, under which it is now generally known. This name is unfortunate, because it suggests the idea of returning or coming back … The inaccuracy is obvious, because the essential quality of the old use is that it remains in the grantor, and is never drawn out of him.Footnote 69
In respect of resulting uses, the ancient doctrine of the old use – and with it a retention concept of resulting uses – persisted after the Statute of Uses into modern times.
B. Trusts and the Doctrine of the Old Use after 1536
The Statute of Uses did not execute all uses: some remained unexecuted and continued to take effect in equity. Such unexecuted uses included uses where the trustees had active duties; uses in the form of a use upon a use; and uses of property other than freehold land.Footnote 70 It is clear that the doctrine of the old use was applied to unexecuted uses, or trusts, of freehold after 1536. Professor Mee refers to Henley L.K.'s observation in Burgess v Wheate (1759) that
an use, whether declared or resulting, must ensue the nature of the land, and retain the same quality; and whether it be expressed or resulting, makes no manner of difference … Uses at common law, and trusts now, must ensue the nature of the land … In the case of a resulting use, the true reason is, that ‘tis never out of the grantor. In the case of trust, ‘tis the same – ‘tis the old trust,Footnote 71
to nineteenth-century treatise literature,Footnote 72 and to Lord Nottingham's observation in the 1670s that “At Common Law, if fine, recovery or feoffment were made without consideration, an use did result back again to the donor by implication of law … So also at this day a trust results in such cases, by [the opinion of] all”,Footnote 73 though the approach was older: in about 1600 it was noted that if
any lands or goods be conveyed to one upon trust which is unlawful or ungodly … if a bill be exhibited by the heir or executor of him who made such gift or conveyance, my lord [keeper] [Sir Thomas Egerton] will relieve such heir or executor, for this case of [a] trust in Chancery is like the case of [a] use at the common law. And therefore, if a feoffment be made to an unlawful use, it is plain the land reverts back again. So is it in [the] case of [a] trust.Footnote 74
It being said that “trusts are to be governed by the same rules that uses were before the statute of uses”,Footnote 75 and given that the doctrine of the old use turned upon retention of the use, the question arises as to why “the idea of retention, although it does reflect the reality to some extent, is not fully accurate” as an explanation of “automatic” resulting trusts in the modern law, with the consequence that it is “necessary … to look beyond the retention idea for a satisfactory explanation of the automatic resulting trust”.Footnote 76 An answer lies in the differences between uses and trusts, which were not in all respects the same thing.
The Distinction Between Uses and Trusts
A. Two names for the same thing?
Professor Mee suggests that “use” and “trust” may be regarded as two names for the same thing:
For convenience, the term “trust” was used where a separate equitable interest continued to exist after the operation of the Statute of Uses, while the term “use” was reserved to describe interests which were executed by the Statute. However, the terminology did not have any substantive significance, so that, for example, a conveyance “to X on trust for Y” would have been executed by the Statute, in just the same way as a conveyance “to X to the use of Y”.Footnote 77
Executed uses after 1536 were indeed normally referred to as “uses”, perhaps because there was no enduring relationship of trust or confidence. Conversely, unexecuted uses after 1536 were frequently, but not invariably, called trusts.Footnote 78 It is also true that it would make no difference to the operation of the Statute of Uses whether the conveyance spoke of a “use” or a “trust”. This is not surprising. The statute spoke of “use, trust or confidence”,Footnote 79 and in the 1540s it was said that “[a] feoffment to A and his heirs in trust that B and his heirs shall take the profits is an use in B and executed by the statute notwithstanding the word trust”,Footnote 80 a point repeated verbatim by Lord Nottingham in the 1670s.Footnote 81 In this sense, “‘use’ and ‘trust’ are not sacramental terms”.Footnote 82 But this alone cannot show that uses and trusts were the same: it need not follow from lack of substantive significance in the terminology that in all respects there was no distinction between them.
Professor Mee further observes that “the rules applied by equity in relation to trusts developed in various ways after the revival of trusts subsequent to the Statute of Uses”, suggesting that this reflected a process, as Henley L.K. put it in Burgess v Wheate (1759), by which equity had shaped trusts “much more into real estates, than before when they were uses”,Footnote 83 and arguing that since the doctrine of the old use turned upon treating the use as imitating the land, further development of this approach would not lead to any change of doctrine.Footnote 84
It is indeed clear that there was a tendency for the rules developed in respect of uses to be applied to trusts, if only as an initial guide:Footnote 85 “It was inevitable … that the rules of the use should be applied to the new trust. The learning of the law of uses had been kept alive in Chancery and an attempt at adaptation was altogether natural and understandable …”Footnote 86 We have seen Egerton L.K.'s conclusion that “if a feoffment be made to an unlawful use, it is plain that the land reverts back again. So it is in [the] case of [a] trust.” In Lord Grey v Lady Grey (1676/7), considering the difference between a voluntary feoffment to a stranger and the same conveyance to a son, Lord Nottingham asked “How can this Court justify itself to the world, if it should be so arbitrary as to make the law of trusts differ from the law of uses in the same case?”Footnote 87 And in Burgess v Wheate, in the context of discussion of whether a trust estate was liable to escheat, Henley L.K. observed that:
the lord chief justice [Lord Mansfield] does not state any difference in the metaphysical essence between an use and a trust, but that there was a difference in the law by which the one and the other was directed; and I think there is no difference in the principles, but there is a wide difference in the exercise of them. It was as much a principle of this Court, that the use should be considered as the land, or as imitating the land, formerly as now; though the rules were not carried formerly so far, nor the reasoning nor directions (when they were less understood) as at present … It was said, the difference consists in this: that equity has shaped them much more into real estates, than before when they were uses. … But why? Not from any new essence they have obtained, but from carrying the principle further, … and I think they should have equally extended in this Court the rules and principles of uses, as well as trusts …
That an use and trust are the same, seems adopted by all the great persons who have presided in this Court.Footnote 88
But that the rules of trusts were the same as, or developed from, the rules of uses, need not demonstrate “[t]hat an use and trust are the same”: “It is true that in the eighteenth century some very eminent judges could say that trusts were only uses reappeared under a new name, but they were concerned with problems of applying principles of the old use to the new trust. This assimilation tended to hide the fundamental difference which in truth divided uses from trusts.”Footnote 89
B. Structural Differences between Uses and Trusts
In one sense it was commonplace that a use was a trust: in creating the use, trust (or confidence) was placed in the feoffees. So it was said in the Common Pleas in Beckwith's Case (1589) that “an use … is but a trust and confidence”;Footnote 90 and in Pitfield v Pearce (1639) it was agreed in the King's Bench that “a use is but a trust betwixt the parties”.Footnote 91
But while uses might turn upon trust in the feoffees, the underlying structure of unexecuted trusts of the fee simple differed from that of uses to which the statute applied. That uses and trusts were not the same is reflected in Egerton L.K.'s treatment of a conveyance of a lease for years to A to the use of B: “my lord [keeper] … will decree it for B … for my lord says that an use at the common law was but a trust and was always to be excused or relieved by subpoena. So, he says, in this cause where a use will not properly rise, yet for the trust's sake I will relieve it.”Footnote 92 As Nottingham put it,Footnote 93
That which now is a trust is conceived by some to be only an use at second hand … Yet doubtless that which is now a trust is and always was a thing quite different from an use. Otherwise there could be no such thing as a trust now. For the statute [of uses] doth in express words declare that where any person is seised to the use, trust or confidence of another, possession shall go according etc.
And therefore if a trust at this dayFootnote 94 did not differ from such trusts or confidences as are mentioned in the statute [of uses], it would follow that all trusts now would be executed as uses, and so there could be no such thing left as a bare trust.
The distinction, Nottingham suggested, turned upon the scope of the statute 1 Richard III, c. 1 (1484) which had created uncertainty, removal of which was the purpose of the Statute of Uses. The Statute of Uses thus applied only to “such trusts and confidences by virtue of which the cestui que trust had power to dispose of the land by 1 Rich. 3”.Footnote 95
The statute 1 Richard III, c. 1 rendered a conveyance by cestui que use good against those having or claiming any title or interest in the land “only to the use” of cestui que use. This phrase was difficult,Footnote 96 but Nottingham fitted it into his theory: the cases outside the Statute of Uses were “the cases of them who claim to their own use, but in trust for another”.
1. Active trusts
In Nottingham's view there was an essential difference between a use of freehold land which was executed by the Statute of Uses, and a use (or trust) which was not. Where feoffees to uses were passively to permit cestui que use to take the profits, the feoffees were seised “only to the use” of cestui que use, and the use would be executed. Where feoffees were to take the profits and deliver them to cestui que use, the feoffees were seised to their own use, but upon trust for cestui que use: without the use – the “authority to take … the profits of the land”, as St German put it – the trust could not be performed. In case of active duties, cestui que use had not a use, but a beneficial interest under a trust.Footnote 97 The Statute of Uses was understood to operate by rejoining use and possession which had become separated: as it was put in The Earl of Clanrickard's Case (1615), “the owner of the land hath power, to give the use, … and the statute couples the lands unto it”.Footnote 98 This being so, Nottingham argued, the Statute of Uses was inapplicable where feoffees were seised to their own use, but upon trust for another: absent a division between use and possession, the statute had no application.Footnote 99 An unexecuted active trust of freehold land was structurally distinct from an executed passive use of such land.
Nottingham's analysis may have “something of the air of an ex post facto rationalisation”,Footnote 100 but his approach was not new when he set it out in the 1670s. Nottingham himself referred to an example of 1544–45 in Brooke's Abridgment, where it was said that if a “man makes [a] feoffment in fee to his use for term of life, and after his death J.N. shall take the profits, this makes a use in J.N.” But if it were said that after the settlor's death the feoffees shall (actively) take the profits and pay them to J.N. “this does not make a use in J.N. for he does not have them [scil. the profits] except by the hands of the feoffees”.Footnote 101
The point appeared again in Meynell v Sacheverell (1607), concerning freehold land conveyed in trust to provide a schoolmaster. On reference from Chancery to Walmsley and Yelverton J.J.K.B., the land was directed to be conveyed to trustees, to the use of the trustees, “and that the … parties to whose use the … [conveyance shall be made] and such persons as shall hereafter have the use and estate of the … lands and premises … to the uses and intents aforesaid shall and may take and employ the rents and profits of the lands” for the purposes of the trust:Footnote 102 trustees to pay over profits were to have both estate and use.
Similarly, in Humphreston's Case (1575)Footnote 103 it was concluded that were land conveyed by common recovery upon active trust to make a re-conveyance, the recoveror must be seised to his own use before re-conveyance: Gawdy J.Q.B. “held strongly” that if the re-conveyance was to be made “the use and the possession should be adjudged in the recoverers”.Footnote 104 As Wray C.J.Q.B. put it, the recoverors “shall be seised to their own use, until they make the estate for that was the use implied”.Footnote 105 The point had been noted some fifteen years earlier: “If a man makes a feoffment upon condition to re-enfeoff the feoffor, the feoffee is seised to his own use and shall take the profits.”Footnote 106
And if Nottingham's approach was not new in his time, it remained current after his time. The point was made by Lord Hardwicke L.C. in Willet v Sandford (1748):
It is necessary to take notice of the different interests in land at this day. There are three kinds: First, the estate in the land itself; the ancient common law fee. Secondly, the use: which was originally a creature of equity, but since the statute of uses, it draws the estate in land to it; so that they are joined and make one legal estate. Thirdly, the trust: which the common law takes notice of, but which carries the beneficial interest and profits in this court; and is still a creature of equity, as the use was before the statute.Footnote 107
Applying this analysis to the facts of the case – concerning a devise upon trusts, including a charitable trust, and a subsequent codicil making alterations to the trusts – Hardwicke concluded that “By the will, the estate in the land, and the use, are devised to the … trustees and their heirs; for a devise of land … carries the estate in the lands, and the use too, without saying to the use of the devisee; but the trust and beneficial interest is in the charity.”Footnote 108 As Nottingham put it, the trustees claimed to their own use, but in trust for another.
The same analysis was adopted in 1791 by Francis Sanders. Referring to the definition of a trust as “a trust or confidence, which is not issuing out of land, but as a thing collateral annexed in privity to the estate, and to the person, touching the land”,Footnote 109 Sanders observed that this
would naturally lead a person to imagine that there existed no difference between these two words [scil. “use” and “trust”]; and indeed it must be admitted that use, in its common acceptation, generally annexes the idea of a trust, especially when we speak of them, as existing before the statute of uses. However, … we shall find, that even previous to the passing of the statute of uses … there was a settled distinction between uses and trusts.Footnote 110
The true distinction before 1536, Sanders argued, was that
a use was properly so called, when a man made a feoffment in fee to a friend, by which the possession or seisin being transferred to the feoffee, the feoffor placed a confidence in him to permit such person or persons as he should or had named, to receive the profits; and also to make such legal estates as such person or persons should direct. This confidence was the use … This use, on account of its dividing the land into two estates, viz., an estate in the land, and an estate in the use or profits, was reduced into a regular system. But a trust did not, in its original meaning, make this regular division of property into use and possession, but it rather signified, that a man had made a conveyance of his lands to another, by which conveyance he not only gave the possession, but also the use, or right to take the profits, to the grantee:Footnote 111 but there was a kind of personal trust reposed in the grantee, that he would retain both the possession and use in order to answer some special intent or purpose.Footnote 112
The same analysis applied after the Statute of Uses:
If a man … conveys land to one (without declaring any use, and there being no consideration), in trust or to the intent that he should convey to a stranger; in order to make this conveyance, and to perform the trust, the grantee must have in him both the use and possession, though the former is not expressly declared to him. … So likewise, if a man is enfeoffed to the intent or in trust to be re-enfeoffed, or to the intent to be vouched, or to the intent to suffer a recovery, none of these intents, or trusts, are uses. For, indeed in all these cases … the land and the use must be construed to remain in the grantee, in order that the trust or intent may be executed.Footnote 113
The same view was taken by Thomas Lewin, echoing Bacon's distinction between special and general trusts:Footnote 114 “It is clear that the statute [of uses] embraced uses of lands only, and did not extend to … special trusts … because the trustee combined in himself both the legal estate and the use, though compellable in Chancery to direct them to a particular purpose.”Footnote 115
Nottingham's approach to the distinction between uses and active trusts takes its place in a line of analysis stretching back to the 1540s and forwards into the nineteenth century. It is difficult to see how it could have been otherwise. If the Statute of Uses was not to bite, a trust of a fee simple required active duties in the trustees, or to be in the form of a use upon a use. The former, by implication, had the same structure as the latter: in both cases the elements of use and possession were held together (“conjoined” in Bacon's word),Footnote 116 but upon trust for the beneficiary. To the extent that active duties caused trustees to be seised to their own use no use could be retained by the settlor; in the absence of active duties, any use of freehold retained by the settlor would be executed by the Statute of Uses;Footnote 117 in neither case could a retained use take effect as a resulting trust.
2. Passive trusts
Feoffees with active duties were seised to their own use by necessary implication.Footnote 118 The same situation could be created expressly. So, taking Nottingham's example, if a feoffment was made to A and B to the use of them C and D and their heirs, in trust that the feoffor should receive the profits,Footnote 119 this
trust built on an use would not have been executed by the statute … for such a trustee could not have disposed of the land within 1 Rich. 3, because 1 Rich. 3 makes good the conveyance of cestui que use against all persons claiming only to his use, which reaches not the cases of them who claim to their own use, but in trust for another.Footnote 120
More difficult was a feoffment “to A and his heirs to the use of A and his heirs in trust that B and his heirs shall take the profits”. This, Nottingham argued, “is still an use executed; for the first use is idle to A being no more than the law speaks”:Footnote 121 a use conjoined with the possession in A and his heirs could not be created merely by expressing a use in favour of A. This view was in due course rejected, the point finally being settled in Doe d. Lloyd v Passingham (1827).Footnote 122
The key was whether in such a limitation A and his heirs were in by the common law, or by the Statute of Uses. Opinions varied. In Tipping v Cosins (1695), for example, Serjeant Wright took Nottingham's approach: “the use limited to the feoffees is void, and they are in by the common law, as where a man makes a feoffment to certain trustees and their heirs, to the use of them and their heirs in trust for J.S. this trust is executed by the statute”.Footnote 123 Holt C.J.K.B. disagreed, holding that the feoffees were in by the Statute of Uses,Footnote 124 but that “whether the feoffees take by the common law or by the statute, yet where the use is once disposed of to them and their heirs (whether the statute executes it or not) there cannot be an use upon an use, nor a trust upon such an use to be executed by the statute”.Footnote 125
The same point was made in Doe d. Lloyd v Passingham: Bayley J.K.B. observing that
a distinction has been taken where the limitation is to A., to the use of A. in trust for B., and it is said that then A. is in by the common law. That is true; but he is in of the estate clothed with the use, which is not extinguished but remains in him. In the case of Meredith v Jones … it is said “For it is not an use divided from the estate, as where it is limited to a stranger, but the use and the estate go together.” That case therefore shews, that although the trustees in this case might be in by the common law, yet they were in both of the estate and the use.Footnote 126
Sanders put it as follows:
if a use be limited to a feoffee … such use, generally speaking is not executed by the statute, but the feoffee … is in by the common law. In this case, notwithstanding the grantee is in by the common law, yet after declaration of the use to him, he has not only a seisin, but a use; although not the use which the statute requires; and therefore that seisin, which before the limitation of the use to himself, was open to serve uses declared to a third person, is by the limitation filled up, and will not admit of any other use being limited upon it … The ground of this construction is, that before the statute, real property was divided into use and possession; but there was no third kind of interest then known. Consequently, when the seisin was transferred to A. B. and his heirs, and it was added, to the use of him, and his heirs, he had both the legal and the beneficial interest; and there is nothing in the statute to alter the nature of his estate.Footnote 127
Feoffees might therefore be seised to their own use, but upon trust for another, not only by implication from active duties, but by express limitation of a use – including a limitation “to A and his heirs to the use of A and his heirs” – so preventing execution even in passive cases.Footnote 128 And since in such cases the feoffees were seised to their own use, no use could be retained by the settlor to take effect as a resulting trust.
A Doctrine of the “Old Trust”?
Unexecuted trusts of estates in fee simple took the form, expressly or impliedly, of a use upon a use, the trustees, being seised to their own use, but upon trust for another. To the extent that this was so, no use could be retained by the settlor, while any use which was retained would be executed. Rules applied to uses were applied to trusts after 1536, but uses and trusts not being the same thing, “automatic” resulting trusts could not be explained after the Statute of Uses on the basis of the settlor's retention of the old use.Footnote 129
An explanation for “automatic” resulting trusts parallel to the retention of the use might have nevertheless have developed had it become possible to think of the settlor not only as having been seised to his own use, but also as having had an “old trust”, or beneficial interest, alongside the old use. There are suggestions of such thinking. In Lord Paget's Case (1589) Thomas Egerton argued that “when a use is raised by feoffment, there all is out of the feoffor, the land is gone, the use is gone, the trust is gone, nothing remaineth but a bare authority to raise uses out of the possession of the feoffees”.Footnote 130 As has been seen, in Burgess v Wheate Henley L.K. observed that in “the case of a resulting use, the true reason is, that ‘tis never out of the grantor. In the case of trust ‘tis the same – ‘tis the old trust.”Footnote 131 And in Roper v Radcliffe (1712) Parker C.J.K.B., having considered the doctrine of the old use, said that
A man in consideration of equity has an estate in land as a trust; this is as a use in consideration of law, and follows the person of cestui que trust, being a beneficial, interest and profit. And so much of the trust as in a conveyance is undisposed of the executor … has in him as his antient trust. This is called a resulting trust.Footnote 132
A similar conception – in terms of a pre-existing “beneficial interest” – is seen in nineteenth-century cases. So in Northen v Carnegie (1859)Footnote 133 Kindersley V.-C. observed that “so far as [the settlor] had not parted with the beneficial interest, it remained in him as a resulting trust. It was not a new estate, but merely so much remaining in him as he had not parted with”, and in Standing v Bowring (1885) Lord Halsbury L.C. concluded that “both the beneficial and legal interest in these consols passed to the Defendant”.Footnote 134
But a concept of an “old trust”, or of a pre-existing “beneficial interest” analogous to the old use and distinct from the “legal interest”, has not secured a place in the modern law, and it is said, referring to Goodright v Wells (1781)Footnote 135 and subsequent cases, that “a man cannot be a trustee for himself”.Footnote 136 As Professor Chambers put it,
the interest which the settlor has … as the beneficiary of a resulting trust, is an equitable interest which is different from the legal ownership he or she had at the beginning. Except as restricted by equity or statute, the legal owner has the full beneficial enjoyment of property at common law and does not have an equitable interest in his or her own property.Footnote 137
Herein lies the difficulty facing a “retention” explanation of “automatic” resulting trusts: lacking a counterpart to the old use, the modern law does not admit of an explanation of such trusts which turns upon retention of the beneficial interest.
Conclusion
It was possible before the Statute of Uses to conceive of the owner of freehold land as seised to his own use. From this it followed that an “automatic” resulting use might be conceptualised in terms of retention of the use of which the settlor had not disposed. After 1536 such an approach was applied to uses executed by the statute, manifesting itself in the application to executed uses of the doctrine of the old use. The same doctrine was applied to trusts after 1536, and the doctrine of resulting trusts itself may well be a product of this process: as Thomas Egerton put it, “if a feoffment be made to an unlawful use, it is plain the land reverts back again. So is it in [the] case of [a] trust.”Footnote 138
But while rules of uses developed before the Statute of Uses were applied to trusts after 1536 – producing practical effects analogous to those produced by the same rules in the context of executed uses, and giving rise to statements which might suggest that trusts were “only uses reappeared under a new name”Footnote 139 – the underlying structures of uses and trusts were not the same; the assimilation of the rules of uses to the rules of trusts “tended to hide the fundamental difference which in truth divided uses from trusts”.Footnote 140 The trust “took the likeness of the use”, while being “perfectly distinct” from it.Footnote 141 A trustee of freehold, whether upon active duties or upon a trust expressed in the form of a use upon a use, was seised to his own use upon trust for another. The use having passed to the trustee, no retention of it was possible, while a use which did not pass to the trustee, but was retained by the settlor, would be executed by the Statute of Uses. The enduring attraction of “proprietary arithmetic”Footnote 142 reflects the influence of the retention conception of resulting uses, but in the case of trusts in the modern law – lacking a secure counterpart to the old use – that conception could not be precisely replicated, leaving the “automatic” resulting trust as a rule in search of a rationale.Footnote 143
