Page:The Green Bag (1889–1914), Volume 04.pdf/98

 Tyrrel's Case and Modern Trusts.

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TYRREL'S CASE AND MODERN TRUSTS. By Prof. Jamks B. Ames. I "HE strange doctrine of Tyrrel's case." 1 J. "The object of the legislature ap pears to have been the annihilation of the common-law use. The courts, by a strained construction of the statute, preserved its vir tual existence." 2 "Perhaps, however, there is not another instance in the books in which the intention of an act of Parliament has been so little attended to." 3 " This doctrine must have surprised every one who was not sufficiently learned to have lost his commonsense." 4 Such are a few of the many criti cisms passed upon the common-law judges who decided, in 1557, that a use upon a use was void, and therefore not executed by the Statute of Uses. It has, indeed, come to be common learning that this decision in Tyr rel's case was due to "the absurd narrowness of the courts of law;" that the liberality of the Chancellor at once corrected the error of the judges by supporting the second use as a trust; and " by this means a statute made upon great consideration, introduced in a solemn and pompous manner, has had no other effect than to add at most three words to a conveyance." 6 This common opinion finds, nevertheless, no support in the old books. On the con trary, they show that the doctrine of Tyrrel's case was older than the Statute of Uses, — presumably, therefore, a chancery doctrine, — and that the statute so far accomplished its purpose, that for a century there was no such thing as the separate existence in any form of the equitable use in land. The first of these propositions is proved by a case of the year 1532, four years before the Statute of Uses, in which it was agreed 1 Digby, Prop, (z ed.) 291. * Cornish, Uses, 41, 42. 4 Williams, Real Prop. (13 ed ) 162. s Hopkins v. Hopkins, 1 Atk. 591, /Vr Lord Hardwicke. See also Leake, Prop. 125; I Hayes, Convey. (5 ed.) 52; 1 Sanders, Uses (2 ed.), 200; 1 Cruise, Dig. (4 ed.) 381 : 2 Blackstone, Com. 335; I Spence, Eq. Jur. 490. II
 * Sugden, Gilbert, Uses, 347, 11. 1.

by the Court of Common Bench that " where a rent is reserved, there, though a use be expressed to the use of the donor or lessor, yet this is a consideration that the donee or lessee shall have it for his own use; and the same law where a man sells his land for £20 by indenture, and executes an estate to his own use; this is a void limitation of the use; for the law, by the consideration of money, makes the land to be in the vendee." 1 Neither here nor in Benloe's report of Tyr rel's Case2 is the reason for the invalidity of the second use fully stated. Nor does Dyer's reason, "because an use cannot be ingendered of an use,"3 enlighten the reader. But in Anderson's report we are told that "the bargain for money implies thereby a use, and the limitation of the other use is merely contrary." 4 And in another case in the same volume the explanation is even more explicit : " The use is utterly void because by the sale for money the use appears; and to limit another (although the second use appear by deed) is merely repugnant to the first use, and they cannot stand together."6 1 Br. Ab. Feff. al Uses, 40; Gilb. Uses, 161 accord. » Benl. (ed. 1669) 61. 8 Dy. 155, pi. 20. • 1 And. 313. See also 2 And. 136, and Daw v. Newborough Comyn, 423 : " For the use is only a liberty to take the profits, but two cannot severally take the profits of the same land, therefore there cannot be an use upon an use." This notion of repugnancy explains also why, in the case of a conveyance to A, to the use of A, to the use of B, the statute does not operate at all. The statute applies only to the Chancery use, which necessarily implies a re lation between two persons. But A's use in the case put is obviously not such a use, and therefore not executed. The words " to the use of A " mean no more than for the benefit of A. But it is none the less a contradiction in terms to say in the same breath that the conveyance is for the benefit of A and for the use of B. B's repugnant use is therefore not executed by the statute. Anon. Moore, 45, pi. 138; Whetstone r. Bury, 2 P. Wins. 146; Atty.Gcn. 17. Scott, Talb. 138; Doe 0. Passingham, 6 B & C. 305. The opinion of Sugden to the contrary in his Treatise on Powers (7 ed.), 163-165, is vigorously and justly criticised by Prof. James Parsons in his "Essays on Legal Topics,'' 98.
 * 1 And. 37, pi. 96.