Book Description

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1889 edition. Excerpt: ... be limited to a feoffee, &c., such use, generally speaking, is not executed by the statute, but the feoffee, &c., is in by the common law. In this case notwithstanding that the grantee is in by the common law, yet after the declaration of the use to him, he has not only a seizin, but a use; although not the use which the statute requires, and therefore that seizin, 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. It is said that whether feoffees take by the common Judgment law, or by the statute yet where the use is once dis-FERGUSON, J posed of to them and their heirs (whether the statute executes it or not), there cannot be a use upon a use, nor a trust upon such a use to be executed by the statute. The reason given for 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 seizin was transferred to A. and his heirs, and it was added to the use of him, and his heirs, he had both the legal and beneficial interest; and there is nothing in the statute to alter the nature of his estate. The result at which I arrive in examining the, _limitation in this way, and apart altogether from any force or effect of the words "as joint tenants and not as;tenants in common," is that an estate in fee simple passed to George. This is the same as the conclusion of Mr. Justice Patterson in the former case, although he seems to have arrived at it by a shorter and less circuitous mode. Then, as to the added words "as joint tenants and not as tenants in common...".