s'oros’
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)6 i _ THE MAY 23194;:
‘LAW BULLETIN
' QJIK-fl {'1' I 01»
THE STATE UNIVERSITY
OF IOWA.

FOR THE USE OF STUDENTS

Edited by tlze Faculty of tlze Law Department

NUMBER FOURTEEN

DECEMBER 1894
.-_--——__~
CONTENTS
The Statute of Uses . . . . Samuel Hayes I
Abstract of Title . . . . . Samuel Hayes 2!
Municipal Corporations Deﬁned . 7ames A. Rollback 23
IOWA CITY
‘ PUBLISHED BY THE UNIVERSITY
' 1894
THE PATTEE SERIES.
ILLUSTRATIVE CASES FOR THE use OF
LAW STUDENTS, PROFESSORS,
INSTRUCTORS,ETC.


The need of a series of “ Illustrative Cases” upon the
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The author is W. S. PATTEE, LL. D., Dean of the College
of Law, University of Minnesota, assisted by Professor JAMES
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Further information in regard to this series can be had
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Kiri/TVEQ l’l’Eﬂicxzswilvj ‘SA'I/ ?- a
THE LAW BULLETIN
OF
THE STATE UNIVERSITY
OF IOWA.
NUMBER FOURTEEN
DECEMBER 1894

THE STATUTE OF USES.
1
IT PRODUCED NEW CONVEYANCES.
Bybthe First Section of the 27 Henry VIII, chap. 10, it is
provided, “that where any person or persons stand or be
seised or at any time hereafter, shall happen to be seised, of
and in any honors, castles, manors, lands, tenements, rents,
services, reversions, remainders, or other hereditaments, to the
use, conﬁdence, or trust of any other person or persons,
or of any body politic, by reason of any bargain, sale, feoff-
ment ﬁne, recovery, covenant, contract, agreement, will, or
otherwise, by any manner of means whatsoever it be; that in
every such case, all and every such person or persons, and
bodies politic, that have or hereafter shall have any such use,
conﬁdence, or trust, in fee simple, fee tail, for a term of life, or
for years, or otherwise; or any use, conﬁdence, or trust, in
remainder or reverter, shall from henceforth stand and be
2 THE LAW BULLETIN.
seised, deemed and adjudged in lawful seisin, estate and
possession of and in the same honors, castles, manors, lands,
tenements, rents, services, reversions, remainders, and heredit-
aments, with their appurtenances, to all intents, constructions.
and purposes in the law, of and in such like estates as they
had or shall have in use, trust, or conﬁdence of or in the same:
and that the estate, title, right, and possession that was in such
person or persons that were or hereafter shall be seised of
any lands, tenements, or hereditaments, to the use, conﬁdence.
or trust of any such person, or persons, or of any body politic,
be henceforth clearly deemed and adjudged to be in him or
them that have, or hereafter shall have such use, conﬁdence,
or trust, after such quality, manner, form and condition as they
before had in or to the use.”1
Its Scope. The persons to be affected by the above provi~
sions are (I) such as “stand or be sez'sed or at any time hereafter
shall happen to be sez'sed” of honors, castles, manors, lands.
etc., to the use, conﬁdence, or trust of any other person or per-
sons or body politic,” and those “that have, or hereafter
shall have such use, conﬁdence or trust.”
How are the persons of the ﬁrst description affected? Their
‘* estate, title, right, and possession” is to “ be henceforth
clearly deemed and adjudged to be in him or them that have
or hereafter shall have such use, etc.” They are to lose what
they have of title, right and possession, when they have it to
the use, conﬁdence or trust of another.
How is the second class affected? -~' In every such case,”
runs the statute, “all and every such person and persons, and
bodies politic, that have or hereafter shall have any such use.
conﬁdence or trust ** at at shall from henceforth stand,
and be seised, deemed and adjudged in lawful seisin, estate
and possession of the same honors, eastles, manors, lands, etc.,
* at t at to all intents, constructions and purposes in the
law, of and in such like estates as they had or shall have in the
use, trust or conﬁdence of or in the same.” They are given
1Digby, Hist. R. P. 303; I Spence, Eq. Jur. *464; Tiedeman on R. P.
§459 note I, and 1 Green]. Cruise on R. P. 314.
THE STATUTE OF USES.
other property rights than they before had in the honors,
castles, manors, lands, etc., in which they owned the use.
The two estates, the one held by the persons sez'sea' and the
use are united; and the united estate as to “be henceforth
clearly deemed and adjudged to be in him or them that have
or hereafter shall have such use;” and the owner of the com-
bined estate is to stand and be seised, deemed and adjudged-
in lawful seisin of the same. The remedy of this statute is the
transfer of the estate of any one seised to the use of another
to the owner of the use.
The two things to be reduced to one were then distinguished,
as they still are, as the legal estate and the use. The design
of parliament appears to have been that in every case where
any person was sez'sed of a legal estate to the use of another
there should be a transfer of the legal title to the owner of the
use and a merger of the use in the legal estate.
Its Subject Matter. Sez'sz'u means the the possession of a
freehold.1 One sez'sea' has the legal title of an estate of free—
hold. One owning the legal title to the use, conﬁdence and
trust of another in a term of years, is not seised. It is legal
freehold estate held to uses, therefore, upon which this stat-
ute operates. .
The statute is made applicable to freeholds, then held to uses
and to such as might thereafter be thus held. Its language is.
‘~' where any person, or persons, stand, or be seised, or at any
time hereafter shall happen to be seised.”
The statute does not forbid or prohibit any acts theretofore
sufﬁcient to give one person seisin of land to the use of
another. It contemplates that what was suﬂlcient for that
purpose prior to its passage, may continue in vogue, and shall
be as effective as before. Future creations of uses are not
invalidated, nor are any new requisites prescribed for their
creation by this enactment.
It was by the Doctrine of Equity that Legal Estates were Sometimes
Held to the Uses of Others. Prior to the enactment of this stat-
lWash. on R. P. 58; \Villiams on R. P. *140, Tiedeman on R. P. §462.
4 THE LAW BULLETIN.
ute what was essential to put realty in such a condition that
one person was seised to the use Of another? \Vhen was the
legal estate of a freehold in one person and the use of such
free hold in another? According to the statute realty may be
in this condition “by reason of any bargain, sale, feo'fiment
tine, recovery, covenant, contract, agreement, will.” Only in
courts of equity was a use treated as property before this
enactment.1 The cestm' gate use, as one owning a use was
called, was in those cou‘ts treated as one having property
rights, but no recognition of a use as property was possible in
the common law courts. It is therefore a use known to that
system of jurisprudence administered in the court of Chancery
that this statute has in view. That real property may be
owned by one person with an enforcible obligation to allow
its proﬁts to another is a conception of equity.
In the common law courts, certain facts deﬁned legal own-
ership, and no other ownership was recognized there. These
courts had no forms of action, no original writs, for one seek-
ing relief as the owner of a use. A use was nothing, a legal
estate was all, in these courts. \Vhat gave seisin to one‘was
determined by the common law, but whether such seisin was
or was not to the use of another was capable of determination
in equity only. This statute then has for its subject free-
hold estates, which by the doctrine of equity at that time
were held to uses.2
A Peofiment or a Grant to a Use The common law convey-
ance for the transfer of a free hold estate in corporeal prop-
erty was feoffment. By this ceremony the feoffer gave to
the feoffee seisin, made him at law the owner. If feoffrnent
was made with a declaration that the feoffee was to take
the seisin for the use of another, or for the express purpose of
holding the title only while the beneﬁts of ownership were to
be in another designated person, Chancery enforced the inten—
1v2W'ash. on R. P. 91 et seq.; 1 Greenl. Cruise on R. P. #330, *337;
Tiedeman on R. P. § 439; I Spence, Eq. Jur. *442 and Digby, Hist. R. P.
281 et seq.
2 1 Greenl. Cruise on R. P. *350 and *363; Digby, Hist. R. P. 30.1,, note I.
THE STATUTE OF USES. 5
tion of the conveyance, and regarded the feoffee as the
owner of a title merely, and the cesz‘uz' Que use as entitled to the
proﬁts of the estate.1 This was one way of giving seisin to
one for the use of another. In such a case the feoffee would
be seised “to the use, conﬁdence, and trust of another.” All
corporeal real property held by such a conveyance at the
‘time of its passage would come under the remedy provided
by this enactment.
Incorporeal interests in real property were conveyed at
common law by deed and the conveyance was called a grant.
The seisin of such incorporeal interests as could be pos-
sessed,2 such as reversions and remainders, would be thus con-
ferred upon the grantee. If they were freehold estates the
grantee would thus become seised. Here again, if the grant
was made with the intent that some one else than the grantee
was to have the beneﬁts of the estate, the rules of equity
niade the grantee but the owner of a title and protected the
cesmz' Que use in the right to the proﬁts of the property.
A Fine or Recovery to the Use of Another. A legal title to lands
could also be conveyed by a ﬁne. A ﬁne was the settlement
of a common law action in covenant, brought for the posses—
sion of land on the supposition that the defendant, the one
.wishing to convey, wrongfully withheld the possession from
the plaintiff, the intended grantee.3 The settlement made
in court gave the land to the plaintiff. This transfer of a
freehold accompanied with an agreement that the plaintiff
should hold the land for the use of another, was another in-
stance of land “seised” to the use of another.
“A common recovery is so like a ﬁne, that it is a suit of
action, either actual or ﬁctitious; and in it lands are recovered
against the tenant of the freehold; which recovery being a
supposed adjudication of the rights, binds all persons and vests
T I Greenl. Cruise on R. P. 294.
8 .t Spence, Eq. jut. *481.
8 I Wash. on R. P. 97; 1 Spence, Eq. jur. *142; 2 Bl. Corn. *348, and 3
Id. *157.
'6 THE LAW BULLETIN.
a fee 4* * it in the recoveror.”1 Lands could be “recov-
ered” for the use of some person other than the recoveror.
The recoveror in such a case would be, in equity, seised for
the beneﬁt of the cestzaz' Que use.
A Devise to the Use of Another. At the time this statute was
passed generally in England it was impossible to dispose
realty by last will and testament. In some parts of the king-
, dom, by local custom, at least some kinds of real property,
could be validly devised. Thus in London and Oxford houses
and lands could be disposed of by last will and testament.2
A devise valid by reason of such custom could be made so as
to give one legal title, while the use would be in another. By
will, then in some places in England seisin could be given to
one for the use of another.
Any Conveyance to a Use. In whatever way the legal title was
transferred (and What was sufficient to transfer it was deter-
mined by the common law) if a declaration of a use accompa-
nied such transfer, the transferee was thus made “a person
seised”3 for the use of another.
A Use Without Conveyance. Without a conveyance one could
bind himself to hold his freehold for the use of another,
namely by covenant, or agreement in parol.
Thus one contracting in consideration of the marriage of a
certain woman to his son, to settle an estate upon the woman
after marriage, would not thereby convey the land, but in
Chancery the person contracting would be seised for the use of
the wife.“1 If the settlement was promised by a sealed contract,
it was by reason of covenant that he was seised for the use of
another, if by other contract (parol) it was by reason of con-
tract or agreement. Any contract, by one seised of a legal
estate, made for the purpose of giving this equitable estate
called the use, to another, if made for a valuable consideration
12 Bl. Com. *357:
9 I Spence, Eq.]us. *136 and note (b) and 1 Greenl. Cruise on R. P. 335.
3 Greenl. Cruise on R. P. 323.
‘2 Wash. on R. P. 423; Tiedeman on R. P. § 444.
THE STATUTE OF USES.
qualiﬁed the ceszfuz' que use to maintain a bill in equity for the
proﬁts of the land. And a deliberate agreement, oral or under
seal, on the part of one seised, to hold for the use of a near
relative,1 a wife, or one within the degree of cousin or
nephew, was sufﬁcient without a valuable consideration to give
such relative the use. Such agreements did not transfer title
or legal estate, but made the promisor one seised for the use
of the other.
Any agreement for a valuable consideration which, without
conveying a legal title brought into existence the use, in the
person paying the consideration, was essentially a sale. It
came to ,be known as a use by bargain and sale. Any agree-
ment, which, without conveying any legal title brought into
existence a use in the relative in consideration of relationship
only came to be called a use raised by “covenant to stand
seised.”
By the principle of equity governing uses, the sale of real
estate by any contract, parol or under seal though not a con-
veyance of title, made the purchaser a eestuz' que use. After
such sale the vendor was seised to the use of the purchaser.
Generally, all acts and promises sufficient in equity to bring
into existence a use in one person to real property the legal
title to the freehold of which was in another, put such prop-
erty into a condition to be affected by this statute.2 Given, a
conveyance sufficient to pass a freehold common law estate,
accompanied with a declaration of a use in another, or a
promise or act effective in equity to show an intention that the
promisor holds his freehold for the beneﬁt of him to whom
the promise is made, and the essentials for the application of
the remedy of the statute are present.
‘conveyances by Bargain and Sale and Covenant Stand seised,
Because by the statute the legal estate is to pass to him who
has the use and, the cesz‘uz' gue use is to be deemed and ad-
judged to have the legal estate, this statute supplied means
of conveying a legal estate, not before known. What 1 2 Wash. on R. P. 424. ‘
'2 Wash on R. P. 392; Tiedeman on R. P. § 444.
- 8 THE LA‘W BULLETIN.
statute declared should be the effect of seisin in one for the
use of another, of course became binding upon the common
law courts. Those courts were required to deem and adjudge
the seisin and estate to be in the ceszfuz'gae use. Whatever
had been sufficient1 to give a use in freeholds, the seisin of
which was in another, was now and for the future was to
continue to be sufficient to pass the legal estate.
Thus before the passage of the statute A being seised of a
freehold by a sale to B became seised for the use of B.
Now the legal estate by operation of the statute is in B.
Again, before the enactment, A being seised of a freehold
covenants with a near relation to hold it for the latter’s use,
and thus as we have seen, becomes seised for the use of such
relation. Now by operation of the statute B becomes the
owner of the legal title. In this way, deeds of bargain and
sale and of covenants to stand seised,2 became sutﬁcient to
convey legal estates. Such deeds bring into existence the
conditions under which the statute can act. They are re—
garded as raising the use, and the statute then operates, or
executes the use. These deeds are not regarded as convey-
ances of the legal estate, but as means by which the statute is
put in action. They and the statute together pass the legal
title of a freehold as effectively as feoffments.
Conveyances of Lease and Release. Before the statute, the grant
of a term of years was accomplished by a deed of lease and
the entry by the lessee. Or the contract was sufiicient if
oral. The possession by the lessee was essential to vest him
with the legal title of the term in either case. But if one
seised of tenements, after the passage of the statute, made a
bargain and sale lease to another, the lessee thereby became
‘the owner of a use for the term thus bargained and sold.
The landlord then being seised for the use of , the lessee, the
statute could operate and immediately the lessee became,
without taking possession, the legal owner of the term. Now
1 2 Wash. on R. P. 415; I Greenl. Cruise on R. P. 332.
zV'V'iliiams on R. P. *183 et seq; 3 ‘Nash. on R. P. 354 et seq. Tiede-
man on R. P- s s 775. 776. 778.
THE STATUTE OF USES. -
before the statute a lessor by a release to his lessee in poses-
sion could convey his reversion. Hence, after the statute
by release to one who took the legal title to a term by a bar-
gain and sale lease, the lessor could just as effectively convey
his reversion.
The executing of a bargain and sale lease for one year,
followed immediately by a release by the lessor to the lessee
became a very common way of conveying legal estates. This
mode of conveying was called “lease and release.’71
One of the great consequences of this statute was the
bringing into vogue means of conveying legal estates not
before suﬁicient for that purpose.
The Legal Estate is the Same Kind of Estate, as to Duration, the Use
was. As before stated, this statute was a legislative recogni-
tion of uses as they were known in Chancery. This enact-
ment required the law courts to recognize the eesluz'gue use as
having the seisin and the legal estate “after such quality
manner, form and condition” as he before had in or to the
use. What was a valid use in equity could now be a good
and valid legal estate when there was a person seised and a
cestuz' gaze use. If the use was a life estate the eesz‘uz' Que use
now became the owner of a legal estate of that duration, if
the use was a fee-simple, under the operation of the statute, it
became a legal estate in fee-simple. ‘Whatever the quantity
or duration of the equitable estate,it became a legal estate of
like quantity under the inﬂuence of the statute.2 A use in
fee-simple by the principles of equity was an estate which was
capable of being inherited by the heirs of the cesz‘zrz' 92.66’ use;a
use in fee-tail was an estate which passed by inheritance tn
heirs of the body of the cesim' Que me; a use for life was like
a legal life estate as to the measure of its endurance.
1 Williams on R. P. *184 et seq; 3 ‘Wash. on R. P. 355.
= I Greenl. Cruise on R. P. 332; 2 ‘flash. on R. P. 415.
IO THE LAW BULLETIN.
II
FUTURE UsEs UNLIKE FUTURE LEGAL ESTATES WERE
KNowN BEFORE THE STATUTE.
Reversions and Remainders the Only Future Legal Estates. If A,
the owner of lands in fee before the statute of uses was
passed, should, by feoffment for example, grant to B an estate
for life in the lands, and at the same time the remainder of
the fee to C and his heirs, he would thereby convey all his
interest. Before the conveyance A owned all. After the
conveyance B and C together owned all. B’s interest was a
present estate, i. e. he possessed his estate. C’s interest was a
future estate. His possession was deferred. C’s estate was
his property from the date of the feoffment, however, and
it being an inheritable estate, if he died before the ter-
mination of B’s estate, his heirs could enter into the possession
the instant B died.1 C’s interest was a remainder, a nested
remainder it was called, because his right, his title, or own-
ership in it was ﬁxed, vested by the conveyance.
Suppose A an owner of lands in fee before the passage of
the statute, by a feoffment conveyed an estate in the lands to
B for his life, without at the same time conveying any re-
mainder, the part conveyed would be less than A’s estate in the
land. A residue, therefore, was left the property of A.2
Here as before B’s interest would be a present estate, an
‘estate in possession and the interest retained by A would be a
future estate, an estate, the possession of which was deferred.
A’s interest being an inheritable estate, his heirs could take
possession at the termination of B’s estate, if he, A, were to
die before B. During the continuance of B’s estate A would
be owner, waiting for his right to possess what he owned.3
His estate was called a reversion, and was a vested estate.
When the owner of an estate conveyed a part thereof only,
the portion not conveyed was called a reversion. When the
owner of an estate conveyed a part thereof to one person, and
1 Williams on R. P. *250 et seq.: 2 Wash. on R. P. 538 et seq.
1Williams on R. P. *241.
“Tiedeman on R. P. §385.
THE STATUTE OF USES. 11:
at the same time, and by the same conveyance, another part
thereof to take effect in possession the instant the preceding
estate terminated, the future estate was called a remainder.
Reversions and remainders were the only future estates pos-
sible at common law. In the examples, C’s remainder and
A’s reversion could be conveyed. They were estates apart
from possession and were regarded as incorporeal property,
while the preceding estate lasted.l They were conveyed by
grant, therefore, while they were future estates. After they
came into possession they were corporeal and transferable by
delivering them into the possession of the transferee?
At common law there was no way by which A the owner
in fee could make C the owner of a future estate, except by
. creating a present estate. He might convey a present estate
to B and grant the reversion to C, or convey a present estate
to B and at the same time convey a remainder after B’s estate
to (3.3 But livery of seisin—the turning over the possession
--was necessary. If that was not done nothing passed from
the one in possession. Until an incorporeal interest was sep—
arated from the corporeal interest (possession) there was no
estate in the land capable of grant, and such separation could
be effected only by the transfer of the possession to an owner
of a present estate less in interest than the party making the
transfer had in the land. One the owner of land in fee in
Iowa can convey an estate therein to C to commence in posses_
sion at a time subsequent to the conveyance, without at the
same time conveying a present estate, because a statute exists
‘giving that power?‘ but at common law nothing of the kind
could be done. By the common law an estate from the
grantor in possession could only pass from him with the pas-
sage of possession. One in possession owning an estate could
not create a future estate while retaining possession. Noth-
1 I Wash. on R. P. 33; Williams on R. P. *253.
’ Williams on R. P. *243.
3Tiedeman on R. P. § 396; 2 \Vash. on R. P. 536; I Spence, Eq. Jur,
$156.
4 Code, Sec. 1933.
I2 THE LAW? BULLETIN.
ing he could do while retaining the possession had the legal
force to bring into existence a future estate.
At common law the owner of a fee could by feoffinent con-
vey a present estate and a series of remainders to follow in
possession. But the present and future estates must not of
course together exceed the feoffer’s interest, and they must be
so limited that they succeed each other as estates in posses~
sion in such a Way that the possession shall not at any time
be vacant.1 A present estate for the life of its owner and a
future estate to take effect in possession some time after the
end of the life estate was not a valid way of transferring a
future estate in lands at common law. Future estates to be
capable of recognition, must have capacity to come into pos-
session without an interval between them and the preceding
possession? The common law required the right to the
present possession to be in some one all the time.
One the owner of an estate in possession could convey a
present estate, by feoffinent say, less than his entire interest,
and by the same conveyance. provide that another estate to he
possessed immediately after the end of the present estate,
might come into existence in case some uncertain event should
occur.3 This provision for the future estate was called a
remainder and was distinguished from a vested remainder by
being styled contingent.
Thus, suppose A the owner of lands in fee should, by feed-
ment convey an estate therein to B for his life, and at the same
time convey a remainder to such a son as A’s daughter Mary
might have ﬁrst born to her by a future marriage, and his
heirs. The provision for M'ary’s son would be a remainder,
not vested, not owned, because it was but a contingent inter-
est. Its becoming property depended on the happening of a
future event, the birth of the person to be benefitedﬁ If the
1 ‘Williams on R. P. *250; I Spence, Eq.jur. *155; 2 Wash. on R, P. 537,
539, 540; 4 Kent Coin. *197.
2 Greenl. Cruise on R. P. 754.
3 2 \Vash on R. P. 541; I Greenl. Cruise on R. P. 704, 707; \Villiams on
R. P. *263 et seq.
4 2 Bl. Com. *169 et seq.
THE STATUTE OF USES. I3
son should be born but his birth should occur after B’S death
there would be an interval of time after the termination of the
‘estate in possession, and the event which was to bring the
future estate into existence. This would leave a vacancy in
the possession.1 For this reason a contingent remainder
failed to become property if the event on which its existence
depended did not occur during the continuance of the preced-
ing estate or at the instant of its natural termination. If the
contingent remainder became vested during the preceding
estate, then upon the termination of the latter, possession of
the former would immediately occur. If the son to take
was born before the death of B, his birth made the remainder
a vested estate. If the present estate conveyed at the time
the contingent remainder was conveyed was destroyed by for-
feiture or otherwise before its natural expiration, and while
the remainder was still contingent, the remainder was thereby
destroyed.2 The remainder required the continuance of the
preceding estate, until that event occurred which was to turn
the contingent estate into a vested one. A remainder is said
to be supported by the preceding estate.
At common law any estate could be conveyed to cease in
case something was done or omitted.‘3 Thus an an estate
"to B for life on condition that he would continue to reside
thereon, would be a life estate on condition. An estate
to B and his heirs on condition of the payment of an annual
rent of a certain amount, and in default of the payment
grantor to re-enter and recover the estate, is a fee upon
conditionﬁt If the thing to be done or omitted is not done or
not omitted, the estate granted is to end,to be cut short. More
accurately, if the condition is broken the grantor or his heirs
may, if they elect to do so, claim back the estate. For example,
1 r Greenl. Cruise on R. P. 754, 775; Tiedeman on R. P. § 397: Williams
on R. P. *269.
8 1 Greenl. Cruise on R. P. 775; Tiedeman on R. P. § 396, § 419; 2
‘Wash. on R. P. 586.
3 I Greenl. Cruise on R. P. 466; 2 \Vash. on R. P. 2 et seq; Tiedeman on
R. P. § 271; O’Brien v. Wetherell, I4 Kans. 616.
4Van Rensselaer 1'. Ball, 19 N. Y. 100.
I4 THE LA‘N BULLETIN.
if an estate is granted for the life of B upon condition, its nat-
ural end is the death of B, but the breaking of the condition
and the grantor or his heirs claiming it for that reason it ceases
before its natural termination. At common law a right to
claim back an estate for breach of condition belonged to the
grantor and his heirs and it ‘was a right which could not be
assigned.l The act by which the estate upon condition was
revested for breach of condition was entry for such breach.2
No conveyance to give the grantor or his heir title to the
estate forfeited was necessary. The breach of the condition
gave the grantor the right to have back what had been con—
veyed, and his entry showed he insisted on that right.
To convey a present estate to A for his life upon condition
he would annually pay a certain sum of money to the grantor.
and if at any time there was a failure to make annual pay~
ment, the remainder of the estate was to go to B and his
heir was not a valid creation of a remainder.3 Only the
grantor or his heirs could enter to claim a forfeiture on the
failure to pay, and if entry was made it re-vested the estate in
the grantor or his heirs. B could not be clothed with author-
ity to enter for the breach. The entry by the grantor or his
heirs destroyed the present estate by insisting on the terms of
the original conveyance, and thus took away the support of
the remainder. For this reason a remainder was not validly
limited if the preceding estate created with it was an estate
upon condition.‘1
Again, a fee. absolute, or on condition, was all the interest
anyone could own as an estate. A remainder at the time a
present estate in fee was conveyed was impossible. 5
Hence at common law no future estates could be validly
created or limited upon a condition or contingency which was
also the condition on which the preceding estate in possession
was to cease. before its natural termination.6
T2 Wash. on R. P. 13;’Tiedeman on R. P. 277:
32 Wash. on R. P. 13.
3 I Greenl. Cruise on R. P. 737; 2 Wash. on R. P. 582.
42 Wash. on R. P. 583.
52 Wash. on R. P. 543; 1 Greenl. Cruise on R. P. 702.
‘Tiedeman on R. P. § 398.
THE STATUTE OF USES. IQ
\a
Future Uses Not Remainders. But for centuries before the
statute of uses was enacted, these equitable estates had been
treated in Chancery as not subject to such restrictions. A
future use which was not a remainder, was possible. Thus it
was possible (I) to validly declare a use to commence at some
time in the future without creating a present use;1 to val-
idly declare a use upon condition that if a certain event came
to pass it should cease, and a use in another should take its
place;2 (3) and to declare a use to one in fee and at the
same time provide that if a certain event occurred, that use
should thereby pass over to and become a use in fee in-
another person. Such future uses were not remainders.“ =
Thus any legal conveyance of the fee to A accompanied.
with a declaration of a use in the estate for B and his heirs.
after he came into the parish where the land lay and settled
there, would be a future use, and a valid one, though not
a remainder. There is no present use preceding it. Under
the statute A being seised, as soon as B complied with the
condition upon which the use was to become his, he would
become the owner of the legal estate. By conveying the
legal estate to A in fee accompanied with declarations to uses,
B could be made ceszfuz'gue use of an interest in fee to com-
mence in enjoyment twenty years from the conveyance, but
with a proviso that if B’s brother H should have any legiti-
mate children alive at B’s death, the use in fee should then
become a use in fee in such children. The use to B would
not be a remainder. It has no estate preceding it to support
it as a remainder. It is a future estate, however. The pro-
vision made for any children of H living at B’s death is a con-
tingent future estate; but it is not a remainder. It is preceded
by a fee, and therefore cannot be a remainder.
It is dependent upon a contingency, the living of legitimate
1 Williams on R. P. *290; 1 Spence, Eq. jur. #5455; 2 \Vash on R. P. 397;
I Greenl. Cruise on R. P. 308; Tiedeman on R. P. § 449.
*2 Wash. on R. P. 397; Williams on R. P. *29[ et seq(.); I Greenl.
Cruise on R. P. 309; Tiedeman on R. P. §449.
' Same.
16 THE Law ‘BULLETIN.
children of H when B’s death occurs, and the contingency is to
destroy a fee in B, at the same time it vests a fee in the chil-
dren. It is a limitation of a contingent fee after a fee and the
vesting of the future estate is to cut short the vested estate. To
provide for a future use as is done here in the proviso is to limit
a use in such a manner that the fee shifts from B, its ﬁrst owner,
to the children mentioned. This was called a “shifting use.’71
The estate to B is an example of a “springing use.772 t springs
up twenty years after the conveyance without a preceding
estate supporting it. Under the statute A would have seisin.
B would have a vested use, the enjoyment of which was to
commence in twenty years. The statute would make B the
owner of a legal estate corresponding with his use, the posses-
sion being future. But A could not be seised for the use of
the possible children. Or more accurately, until B’s death it
could not be known whether A was seised to the use of any
one else than B. In the event that He death occurred when
legitimate children of H were living, then it became a fact
that others owning the use existed. The statute at once exe—
cuted the legal estate in B, a legal estate in fee, commencing
in possession twenty years from the conveyance; and when E
died, if the children were living, it again executed the legal
estate in fee in them. The fee shifted from B to the children
of H. Thus, by creating uses, legal estates, unlike remainders.
could be provided for after this act of parliament.
How the $tatute Operates on Contingent Uses. USES in re-
mainder could of course be declared both vested and con-
tingent.3
The contingent uses as remainders, like other contingent
uses, springing and shifting, became vested legal estates by
force of the statute as soon as they arose, i. e. as soon as
the event on which they were to become vested estates
occurred. Future contingent estates are in fact not estates at
1 'l‘iedeman on R. P. § 484; \Villiams on R. P. *291; i2 Wash. on R. P.
618.
1‘ Tiedeman on R. P. § 483', 2 Wash. on R. P. 614 et seq.
3 2 Wash. on R. P. 608.
THE STATUTE OF USES. 17
all, but provisions for estates if something shall come to pass.
A future contingent use cannot be acted on by the statute
until that which is to bring it into existence as an estate has
occurred. Until that time it is but a possibility. But it is
convenient to call these possibilities estates and distinguish
them from estates in reality by the word contingent. The
future estates after the statute were therefore the following:
I. Remainders.
2. Reversions.
3. Those limited as springing uses.
4. Those limited as shifting uses.
The ﬁrst might be vested or contingent and they might be
limited according to the common law or as uses.
The second kind were always vested and they might be
legal estates or uses.
The third kind were uses in their origin and might be
vested or contingent.
The fourth were uses in their origin and were always con-
tingent.
III
UsEs NoT AFFECTED BY STATUTE.
But in construing this act of parliament, the common law
courts did not make it applicable to all estates held “to the
use, conﬁdence, and trust of another.”
Leaseholds Held to Uses. As has been shown, the statute
seems to require that the owner of the legal estate shall be
seised and inasmuch as one having the title to a leasehold is
in law not seised, a use in a leasehold does not become a
legal estate in the ceséu-z' Que 2156.1
A term for years to A for the use of B after the statute in
the law courts, had the same meaning as before. A was the
owner. And so in a court of equity it had its former mean-
ing; 13 was entitled to the beneﬁts of ownership, and could in
those courts procure the remedies necessary to compel A to
allow him an owner’s rights.
1 2 \Vash. on R. P. 408; Tiedeman on R. P. §462; 1 Greenl. Cruise on R.
P. 368; I Spence, Eq. Jur. *466.
18 THE LAW BULLETIN.
A Use' to a Married Woman was also in equity held not within
the force of the statute when it was intended that she should-
have the sole beneﬁt thereof, on the ground that to hold the
use converted into a legal estate was to give to the husband
of such woman control against the purpose of him who con-
veyed the use and against equity.1 If A conveyed to B for
the sole use of C, a married woman, the courts of equity
would require B to account for the proﬁts to C instead of
regarding the legal estate as in C; for construing the statutes
to apply to C in such a case would be equivalent to making the
husband the owner, during the marriage, of what was intended
solely for his wife.
AnActive Use. _ Again if the legal title to the freehold was
given to one and the conveyance imposed active duties upon
him in respect to the control or management of the property
for the beneﬁt of another, the two estates were not united.2
The statute was construed not to include an estate thus seised
to the use of another. For example a feoffment to B and his
heirs, to rent the property, collect the rents and pay them to
C and his heirs, while it gave B seisin and made C the cash/f
(me use and therefore the former became seised for the use of
the latter, yet since the duties imposed on B in respect to
the property required the legal title to remain in him, the
courts held that the statute was not intended to operate upon
a use thus limited.3
A Use upon a Use. Lastly, the conveyance of the legal estate
to A to the use of B for the use of or in trust for C,made A the
person seised and B the person for whose use he was seised.
Who was to have the legal estate by the statute? The seisin
in A, the use for B, supplied the conditions for the statute to
operate. The statute was construed to transfer the title from
A to B, but not to have any force to move it on to C. This
1 Tiedeman on R. P. § 469.
*2 \Vash. on R. P. 458;’l‘iedeman 468; 1 Spence, Eqjur. *466; 1 Greenl.
Cruise on R. P. 357.
82 Wash. on R. P. 460; \Villiams on R. P. *159 et seq; 1 Greenl,
Cruise on R. P. 354.
THE STATUTE OF USES. 19
construction was given to it by the law courts. T hereupon
the courts of equity, upon the theory that the intention of such
a conveyance was not to beneﬁt B, made him account to C for
the proﬁts of the estate.1 In equity, in such a case therefore
C was the eesz‘uz'que use as fully as if the statute had never
been passed.
To convey the legal estate to A to the use of B to the use
of C was to limit a use upon a use. The statute then did not
make the second use a legal estate. It continued to be a use.
With these exceptions namely:
I. A use in a term of years.
2. A use to a married woman.
3. A use when the person seised has active duties to per-
form in respect to the property, and
4. A use upon a use the statute made the equitable estate
legal, either immediately (when it was a vested use) or as
soon as it became vested.
The Exceptions Left Equitable Estates Still a Part of the Chancery
Jurisdiction. These exceptions are now called trusts. The
legal owner is now the trustee, the equitable owner is now
called the ceszfuz' Que trust. If then parliament intended to con—
vert all uses into legal estates by enacting the statute, its
effort was a remarkable failure. If parliament wished to
make the conveying of legal estates as easy as the declaring
of uses, it succeeded. There can be no doubt that parliament
did not resort to this legislation for the purpose of making
limitations of legal estates easier than before. And it would
seem the intention of parliament was to make all equitable
estates legal. The purpose intended was not accomplished.
But much better modes of conveying legal estates did result
from the enactment of the statute of uses. A better result
than the one intended, followed from this famous statute.
After it came to be settled law that a use upon a use was not
executed by the statute, and after such a use in Chancery
became a trust, it was as easy as before to separate the legal
ownership from the equitable estate.
1 Williams on R. P. *160.
20 THE LAWV BULLETIN.
One desiring to create an equitable estate by the old com-
mon law conveyance, could enfeoff A and his heirs for the
use of B and his heirs, in trust for C and his heirs, and then
under the statute B, the first cesz‘uz' Que use would become the
owner of the legal estate in fee simple,l while in Chancery
C would be entitled to the proﬁts. C would be the owner
of a use, and have all the rights against B that a (resz‘uz' Que use
before the statute had, against the legal owner; or, the feoff-
ment could be made to A and his heirs for the use of himself
and his heirs in trust for C and his heirs, and C’s estate
would remain purely equitable.2
A deed of bargain and sale or any other of the deeds owing
their force to the statute could be employed either to con-
vey a legal estate, or to convey the legal title to a trustee for
a rrs/m'gzrc trust, at the option of persons making the convey-
ance. For example, a bargain and sale deed itself raised a use
and if no second use was declared or expressed in the deed,
the statute made that use a legal estate in the bargaineeg
But if the estate was bargained and sold to A and his heirs
in trust for C and his heirs, an equitable estate in fee passed
to C . which had not the power to draw to itself the legal title.
The use or the omission of the the three words “in trust for”
by the conveyancer determined whether the conveyance
transferred an estate in trust or a legal estate.
Samuel firm/es.
12 Bl. Com. 335. M
2 2 Shars. Bl. Coin. 336, note 58.
3 'l‘yrrel’s Case, Dyer, I55; I Greenl. Cruise on R. P. 352, and note I.
No.
No.
ABSTRACT OF TITLE. 21
ABSTRACT OF TITLE
To the Northeast Quarter of Section No. 2, Township
5,
No. 78, Range No. 24.
United States
to
John S. Dean.
2 Original Entry.
8 Dated October 30, 1848.
Conveys the northeast quarter of section No. 2, township No. 78
north, range No. 24.
John S. Dean and 1
Nancy Dean {
to
Isaac Cole and
Robert L. Lidrich. J
Conveys north half of northeast quarter of section No. 2, town—
ship No. 78 north, range No. 24.
\Varranty Deed.
Dated November 24, 1849.
Filed for record November 26, 1849.
Recorded, Book B, page 100.
John S. Dean and wife (Nancy)
to
Thomas K. Brooks. S
\Varranty Deed.
? Dated May ——, 1849.
Filed for record Dec. 3, 1849.
Recorded Book B, page 217.
Conveys the southwest quarter of the northeast quarter of sec-
tion No. 2, township No. 78 north, range No. 24.
John S. Dean and wife, and
I. Cole and wife L
l
Vt’arranty Deed.
Dated May I, 1851.
Filed for record May 6, 1851.
J Book C, page 436.
to
James Q. Hammond.
Conveys undivided half of north half of northeast quarter section
No 2, township N0. 78 north, range No. 24..
J. O. Hammond and l Vv’arranty Deed.
Margaret A.Hammond , Dated August 10, 1852.
to f Filed for record October 16, 1852.
Thomas K. Brool's. J Book C, page 448.
Conveys undivided half of north half of northeast quarter of
section No. 2, township No. 78 north, range No. 24.
Robert L. Lidrich and l Warranty Deed.
Cornelia B. Lidrich Dated September, 1856.
to ' Filed for record October 7, 1856.
Thomas K. Brooks. J Book D, page 579.
Conveys undivided half of north half of northeast quarter of
section No. 2, townshtp No. 78 north, range No. 24. Cornelia B.
Lidrich relinquishes dower.
\"TT
22
THE LAVV BULLETIN .
N0. 8.
No. 9.
No. 10.
Thomas K. Brooks and _l Mortgage.
Phoebe Brooks - Dated March 7. 1860.
Filed for record March 7, 1860.
to
James A. NVilliamson. l Book 5 Mortgages, page 511.
Conveys the north half and the southwest quarter of the north-
east quarter of section No. 2, township No. 78 north, range No. 24,
to secure three promissory notes of mortgagor, Thomas K. Boooks,
as follows: One of $400 payable two years from date to the order
of James A. Williamson; one for $400 payable three years from
date to the order of said Williamson; and the third payable four
years from date to the order of said Williamson, and all bearing
date March 7, 1860, and all drawing interest at the rate of ten per
cent. '
T. K. Brooks died intestate February 24, 1865, and James F. Brooks,
his son, was appointed administrator of his estate April 14, 1865.
Phoebe S. Brooks ﬁled a paper waiving her right to be appointed
administratrix, and requesting the. appointment of James F. Brooks
April 5, 1865. In James F. Brooks’ application for letters of
administration it is stated that said T. K. Brooks left Phoebe S.
Brooks, his widow, and James F. Brooks and L. L. C. Brooks, his
children and heirs at law. Notice of the ﬁnal report of James F.
Brooks as administrator, and of his application for discharge were
served upon Phoebe Brooks and L. L. C. Brooks, and the pro-
bate record shows a distribution of money in the administrator’s
hands of $163, after payment of claims and costs, among said
Phoebe, James F., and L. L. C.
Among claims ﬁled and established against the estate are the
notes described in the mortgage, which the record shows were
fully paid. There is no release or satisfaction of record of this
mortgage.
Phoebe S. Brooks, J
James F. Brooks, and l 'vVarranty Deed.
L. L. C. Brooks if Filed for record May 10, 1870.
to j Recorded in Book V, at page 319.
Calvin Thornton. I
Conveys the north half and the southwest quarter of fhc north-
east quarter of section No. 2. township No.78 north, ramgc No. 24.
Treasurer of Polk County ? Treasurer’s Tax Deed.
. Dated May 1, 1875.
8 Recorded May 1, 1875.
to
R. H. Giddings.
Conveys the northwest quarter of the northeast quarter of sec-
tion No. 2, township No. 78 north, range No. 24.
The deed recites the sale May 1, 1872, for the taxes assessed and
unpaid for the year 1871.
MUNICIPAL CORPORATIONS DEFINED.
11. R. H. Geddings, Pzamrgﬂ, '0. ,
Calvin Thornton, Defendant. 8
Action in the district court. Original notice served January 18,
1878, on defendant, Calvin Thornton.
Petition ﬁled January 18, 1878, claiming ownership of land in
No. IO and possession on Treasurer’s deed in No. 10.
February 2, 1878, action dismissed without prejudice.
Judgment rendered in district court of Polk county June 11,
1862, for $106.27 damages, and $14.75 costs, in favor of P. L. C.
Howe and against L. L. C. Brooks, has never been satisﬁed.
STATE on Iowa, )
POLK COUNTY. \Ve hereby certify that we have examined the
records, titles and dockets of said county for deeds, mortgages, judgments,
mechanics’ liens, tax sales and all other incumbrances affecting the title to
land described above, and ﬁnd only those above set forth. This certiﬁcate
includes this 18th day July, 1884.
JONES & SMITH.

MUNICIPAL CORPORATIONS DEFINED.
Our system of local and municipal government is copied in its
general features, from that of England. Our cities, towns, coun-
ties and school districts are public corporations. Not always
are they all municipal and political, but they are at least quasi
public. They are created by the Legislature, and are invested
with power to decide and control local matters pertaining to
their respective localities. The number and freedom of these
local organizations, whereby political power is exercised by
the citizens of the various local subdivisions of a State who
have a right to vote and to regulate their own domestic con-
cerns, constitute a marked feature in our system of govern-
ment. Membership in them is constituted by living within
certain limits.
These corporations are simply the administrative form of
the fundamental American idea of government, namely, that
the people are the source of all political power and have the
right to exercise it. As local matters can better be regulated by
the people of the locality than by the central power, We pro-
vide that each road district, each school district, each city and
each county shall, as to its local concerns, be selfgoverned.1
1 I Dillon’s Mun. Corp. § 9.
24. ‘THE LAW BULLETIN.
We ﬁnd, therefore, that a municipal corporation is a subor-
dinate branch of the domestic government of a state. It is
instituted for public purposes only, and has none of the pecu-
liar qualities and characteristics of a trading corporation,insti—
tuted for purposes of private gain, except that of acting in a
corporate capacity. As a local governmental institution, it
exists for the beneﬁt of the people within its corporate limits.
The legislature invests it with such powers as it deems ade-
quate to the ends to be accomplished.1 It is an incorporation
of persons, inhabitants of a particular place, or connected
with a particular district, enabling them to conduct its local
civil government. It is merely an agency instituted by the
sovereign for the purpose of carryin out in detail the objects
of government. This was the very object of making it a
body politic, giving it a legal entity and name, a capacity to
contract and be contracted with, to sue and be sued, to hold
and dispose of property, and thereby to acquire rights and
responsibilities. These franchises are conferred upon it for
the purpose of enabling it the better to effect the main design
of its institution, the exercise of certain of the powers of gov-
ernment, subordinate to the legislature, over a certain part
of the territory of the state.
We have said that the exercise of certain powers of gov-
ernment by the corporation was subordinate to the legisla-
ture. By this we mean that the corporation is an agency
instituted by the state for the purpose of carrying out the
objects of government, local or general.
But this agency is essentially a revocable agency, having
no vested right to any of its powers or franchises, and fully
subject to the control of the legislature, who may enlarge or
diminish its territorial extent or its functions, may change or
modify its internal arrangement, or destroy its very existence.
The powers conferred upon it affect its relations to other
persons, natural or artiﬁcial, but they do not touch its relation
to the state, its creator. Indeed, the legislative body is pre-
vented by the Constitution from investing by contract any
1The hlayor 1/. Ray, 19 Vv'all. 468.
MUNICIPAL CORPORATIONS DEFINED. 2 5
municipal corporation with an irrevocable franchise of gov-
ernment over any part of its territory. The legislature can-
not alienate any part of its legislative power which by the
Constitution is vested in a general assembly regularly con-
vened. If the legislature was to attempt to erect a munici-
pality with a special provision that its charter should be
unchanged or irrevocable, such provision would be a nullity;
for acts of Parliament, and with us, acts of the General
Assembly derogatory from the powers of subsequent assem-
blies bind not.1
There can be no contract between the government and the
governed, for but one party is concerned—the public, and the
inhabitants upon whom the powers and privileges are con-
ferred are mere trustees, who hold and exercise such powers
for the public good. The only interest involved is the public
interest and no other is concerned in their creation, continu-
ance, alteration or renewal.
Having thus outlined the meaning of the word municipal
as applied to corporations, attention is called to the declara—
tion of the Supreme Court of Iowa as to the status of district
townships or school districts. The Court says inter alia,
“The word ‘ municipal’ strictly applies only to what belongs
to a city, by the Romans being called municipia. We, how-
ever, attach to the Word a more extensive meaning. ‘We call
mmzz'czjﬁal law not the law of a city only, but of the state, and
the word is used in contradistinction to international. An
offense against the law of nations is an international offense,
but one committed against a particular state is a municipal
offense. In Bouvier’s Law Dictionary a municipal corpora—
tion is deﬁned to be a ‘public corporation, created by govern-
ment for political purposes, and having subordinate and local
powers of legislation,’ and in the same Work it is declared that
‘a polz'tz'cai corporation is one which has principally for its
object the administration of the government, or to which the
powers of government or a part of such powers have been.
delegated,’ and in Angell and Arnes on Corporations it is
1 Phila. '0. Fox, 64 Pa. St. 169.
26 THE LAW BULLETIN.
declared that the word ‘corporation is oftentimes signiﬁcant
of a community clothed with extensive civil authority, and a
community of that kind is sometimes called a political, some-
times a municipal and sometimes a public corporation.’ It is
generally called public when it has for its object the govern-
ment of a portion of the state. From the foregoing it
would seem that the words political, municipal and public,
when applied to corporations, are used in a synonymous
sense. at
Chapter 172, Laws 1862, declares that each civil township
is a school district, and each school district is declared to be a
corporation, under the designation of district township, with
power to hold property, become party to suits and contracts
and do other corporate acts. It has power to direct the sale
of any school-house, or the site thereof, and of such other
property, personal and real, as may belong to the district; to
determine what additional branches shall be taught in the
schools of the district, to vote such tax, not exceeding ﬁve
mills in one year, as shall be deemed sufficient for the purchase
of grounds, the construction of necessary school-houses, the
payment of debts, and the procuring of libraries and appa-
ratus. The board of directors make all contracts, purchases,
payments and sales necessary to carry out any vote of the
district, ﬁx the site for school-houses, establish graded or
union schools, audit and allow just claims against the district,
visit the school, and aid the teachers in establishing and
enforcing rules; apportion tax voted the district township, etc.
Enough has been said to show that the district townships
are most important governmental auxiliaries. Indeed, with—
out them, or some substitute for them, the state could not
successfully provide for the educational wants of its people.
To these corporations, it is quite apparent, from the forego-
ing review, a portion of the powers of the state government
has been delegated. They are, therefore, political corpora-
tions.”1 7(mzes A. Robbar/z.
‘ \Vinspear z‘. Dist. Twp, etc., 37 Iowa 542.
The Leading Law Dictionary
__ 1 5 __
ANDERSON.
“It marks a great advance over other works—is indispen-
sable to one who wishes an accurate knowledge of the law.”
-——PROF. TOWNSEND, Yale Law 50/200].
“Easily the most valuable work of its class.”--PRoF.
BURDICK, C oruell Law 50/200].
“I have used about all such works in the language; this is
by far the best.”__-Ex-SUP. CT. JUDGE FREEMAN, Dean 1y‘
Law 50/200], Uuz'versz'ly 0f Tennessee.
“It merits the success it has achieved. I use it frequently
——always with satisfaction.”—-PR0F. McCLAIN, Vz'ce-C/zan—
(‘ellor Law De]?! Uizz'uerszify of Iowa.
“Every lawyer and every student should have a copy.”— PROF. SMITH, Dean 0f Ceulml Law 50/200], I/Vebraslea.
“Exceptionally well arranged and reliably accurate.”-~—
PROF. HOYNES, Law Department, C/uz'versz'ly (f Arolre
Dame.
“Among its many valuable features, not the least valu-

able is the collection of recent cases construing particular
terms.”-—-PROF. BRANTLY, Law 50/200], University [Wary-
laud.
“Admirably done. It happily supplements general deﬁni.
tions with detailed and speciﬁc deﬁnitions and explanations
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Commentaries on the‘ Law of
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