In order to raise a use which the statute will turn into a possession, it is necessary that there should be, 1st, one person seised to the use of another, in ease ; 2nd, a use in ease, limited in possession, reversion, or remainder. The use may be either express, as where lands are conveyed to A and his heirs, in trust for B and his heirs, or in con fidence that he and they shall take the profits, or where a vendee, for a valuable consideration, conveys by bargain and sale enrolled, in both which cases the legal estate vests in the grantee or bargainee by the statute ; or it may be implied, as where a feoffment is made without consideration or declaration of the use, in which case the use results, and the estate returns to the grantor.
It was settled by the courts of law that the statute 'could not operate except upon an estate of freehold, and that .therefore copyhold and leasehold estates are not affected by it. A term of years may of course be created out of a freehold estate by way of use, but when once subsisting cannot be conveyed to uses. If, there fore, a term were assigned to A to the use of B, the legal estate would remain in A, who however would be considered in equity as a trustee for B.
By the operation of the Statute of Uses, a man may, through the medium of a feoffec or releasee, make a conveyance to his wife, which ho could not do at common law (Litt., s. 168 ; Co. Litt., 112 a.). In like manner a married woman, having a power, namely, a right to limit a use, may appoint to her husband.
At common law a man could not limit a remainder to himself, nor could he limit it to his heirs so as to make them take as purchasers, without departing with the whole fee simple out of his person (Dyer, 156 a, fol. 24 ; Co. Litt., 22 b.), but he may do so by means of a con veyance operating under the statute. ' It is a rule of the common law that joint tenants cannot take at different periods. (1 Co., 100, b. 2.) Again, by its rules, a fee could not be limited upon a fee ; a freehold could not he made to commence in futuro, and an estate could not be made to cease by matter ex post facto, so as to let in another limitation before the expiration of the former. [REMAINDER.] But limitations of the above kinds may be
made to take effect under the Statute of Uses. Such limitations are called &Wang or secondary and springing uses ; and Mere or con uses.
Aifting or Secondary Uses are properly such as take effect in deroga tion of some other estate, and are either limited expressly by the deed, or are authorised to be created by some person named in the deed : as if an estate were limited to the use of A and his heirs, with a proviso that if 11 pay 101. the estate shall go to II and his heirs. Shift rig uses seem to have existed before the statute, when, as the legal estate remained in the feoffecs, the rule of the common law, which did not allow the fee to change from one to another except upon breach of a condition Annexed to the estate at its creation, was not violated. They are now of constant occurrence in settlements of property. pm-mew:NT.] The rules against perpetuities in settle ments of property are applicable to shifting uses, which must be limited to take effect within the same period, namely, that of a life or lives in being, and twenty-one years afterwards, unless where they are to take effect after an estate tail, in which case, as the tenant in tail may defeat the use by barring the estate tail, such a limitation has no tendency to a perpetuity.
Springing ties, though often confounded with shifting uses, are more properly such as are limited to arise in a future event where no previous use is limited ; as in the case of a bargain add sale to take effect ten years hence, where the use in the mean time remains in the grantor. They are subject to the same limits as shift ing uses.
Future or Contingent Uses are properly such as are limited to take effect as remainders; such as a use to the first unboru son of A, after a limitation to him for life or for years determinable with his life. The rule of law, that a vested freehold must precede a contingent remainder, did not apply before the statute to . contingent uses, because the freehold remained in the feoffees ; but, since the statute, they are subject in this respect to the rules of contingent remainders.