The Statute of Uses before the Statute of Wills
The Statute of Uses is the watershed statute of Anglo-American property law. For a bit more than a century and a half prior to the Statute of Uses,
owners of real property had been able to put their land in use (very similar to putting land in trust under modern property law) to obtain a variety
of advantages, from strengthening the power of the husband inside the marriage to being able to dictate the usage of the land after the owner's death (wills
for real property were not available prior to 1540 outside of certain boroughs). Prior to the statute in 1536, the interest of the feoffee to uses (holding
the position analogous to that of the modern trustee) was protected in the common law courts against outsiders. The interest of the beneficiary was protected only
in the chancellor's court of conscience. The Statute of Uses dictated that whenever anyone stood seised to the use of others, those others would hereafter
have before the courts of common law what previously they had had only before the chancellor. Thus, the "equitable" interests of the benficiary became
"legal" (i.e., common law) interests.
Since a good portion of the motivation for the Statute of Uses was the avoidance of problems that otherwise would have complicated the dissolution of the
monasteries (See Robert C. Palmer, Selling the Church, chapter 8), the full range of effects of the Statute of Uses were not worked out. There was an obvious
problem with women and dower right, and the statute handled that problem easily enough. Despite seemingly comprehensive language, however, the statute
did not seem to apply to uses in which the feoffees to uses had active management duties; nor was the common law clear at the beginning that the statute would
work to transfer into common law interests that could not have been created at common law prior to the statute. The common law would eventually reach precisely
that conclusion, and the result was a great proliferation at common law of future interests, with the concomitant greater ability at common law to
manipulate resources to influence the lives of others.
Owners, by virtue of the Statute of Uses, lost at least a part of their accustomed facility in dealing with real property. While most owners could not
devise their land by wills, they had been able to establish a use, the purpose of which was the performance of their last will and testament (the
direct reverse of the modern pour-over will.) To the extent that such a use imposed active duties on the feoffee to uses, such uses would survive. But
many of those uses were simply grants of various estates in land, present and future interests. Since the common law was unclear about the effect of the
Statute of Uses on such interests that had not been allowed at common law prior to the statute, owners lost at least that part of their ability to dictate
what would happen to their land (together with conditions that tried to pattern the lives of the survivors) after they died. The Statute of Wills in 1540
has been construed (including by myself) as a restoration of much of the ability that had been taken away by the Statute of Uses, but now straight-forwardly
by allowing wills concerning real estate.
This collection of cases assembles at least part of what can be known about the effect of the Statute of Uses prior to the time at which the Statute of
Wills came into effect. It does not purport to assemble all the material, because these cases are merely those I noticed in looking for something else
(enforcement actions for the Statutes of 1529). I have no idea whether these cases represent only a small percentage of what is actually in the plea
rolls or an almost complete record. The cases at this point are not numbered, but will be numbered and re-arranged once all the cases I noticed are
included. At that point, this message will be deleted, and the rest of the material in this introduction will be recast in light of the cases here. Until
the material is recast in that way, this site is basically a collection of sources with working notes.
Basic Applications of the Statute of Uses
Gregory Waren v. Thomas Twyng, (Common Pleas, Michaelmas, 1538)
This action of novel disseisin de quibus provides insufficient data to show the background social situation of two complex title chains, but a relatively
simple application of the Statute of Uses: that the statute will act to give the beneficiary of a fee simple in a use now a fee simple at common law.
William Atkyns v. Thomas Corby of Bierton, husbandman, (Common Pleas, Michaelmas, 1539)
This action of trespass illustrates the effect of the Statute of Uses as would be expected both on a bargain and sale made prior to the Statute of Uses (a
bargain and sale traditionally raised a use of seller to buyer) and the effect of the Statute of Uses on uses created after the statute was promulgated.
Thomas Tunbrige v. Thomas Smyth of Bayford, husbandman and Thomas Carter of Hertford, laborer,
(Common Pleas, Michaelmas, 1539)
This action of trespass concerns copyhold land and indicates that, despite the fact that transfers of copyhold land involved surrenders "to the use
of" another, the Statute of Uses did not apply to such situations.
Michael Dormer, citizen and alderman of London v. Edward
Conusor of Bloxham, Oxfordshire, gentleman son and heir of
William Conusor of Bloxham gentleman deceased,
(Common Pleas, Hilary, 1540)
This performance bond included the terms of an indenture for a bargain and sale made right before the Statute of Uses. In pleading the performance of
the condition for the defeasance, the defendant did not include the action of the Statute of Uses on the bargain and sale.
Henry Gooderyk v. Christofer Hall of Edgeware, Middlesex,
(Common Pleas, Trinity, 1540)
This action of trespass is a good exemplar of the way in which the beneficial tenants in fee tail under a use prior to the Statute of Uses could use
a common recovery. The case also illustrates female inheritance after the Statute of Uses and the partitioning of the inheritance between the daughter/heirs.
Complex Applications of the Statute of Uses
Sherman v. Felgate, (Common Pleas, Easter 1540)
This action of debt was founded on a performance bond debt that required compliance with indentures for a conveyance of real property. The property concerned
included both free and unfree land. The bargain and sale was right before the Statute of Uses with part of the compliance with the indentures required
after the statute. The case includes a security interest for the conveyance that involved a use and was not of a kind allowed at common law: precisely
the kind of use question that would have raised severe problems in application of the statute, although that interest was not at issue in this case.
Thomas Stradling, armiger v. Giles Hille of Halsway, jr., armiger
and John Trevylyon, jr., of Halsway, (Common Pleas, Easter 1537)
This action of trespass for breaking close came shortly after the Statute of Uses took effect. It seems to indicate that, after the death of a use
beneficiary who had granted a lease that had still run its course, a feoffee could grant an effective lease to another, who could then enter and terminate
the first lease early.
Thomas Nashe v. John Fayreway of Cranbrooke, weaver, (Common Pleas, Easter, 1539)
This case of trespass for breach of close sets up a recent trespass to get to an issue about a prior disseisin complicated by a subsequent feoffment into a
use that was then acted upon by the Statute of Uses.
Roger Rokewode, armiger v. John Garneys, gentleman, (Common Pleas, Trinity, 1539)
This action on a writ of entry in the post raised a subtle issue about the action of the Statute of Uses in the context of a common recovery that would
otherwise have clearly barred the suit of the son of a tenant in fee tail. When a tenant in fee had enfeoffed feoffees to uses to hold to himself in fee tail
and to two others for their lives and that use was then acted upon by the Statute of Uses, did the two life tenants hold then by the grant of the tenant in
fee tail (since he had created the use) or was he an equal tenant with the two life tenants such that he could participate equally with the two life tenants
in the common recovery and bar his issue? No judgment is recorded, but the suit seems to indicate that this question was raised.
John Butler, armiger & Giselda his wife v. Griffin Dunne, knight, (Common Pleas, Michaelmas, 1539)
This action of waste was brought against one who had been a beneficial life tenant before the Statute of Uses and by the statute became the common law
tenant of a life estate. The case seems to indicate that the beneficial life estate prior to the Statute of Uses was not strictly legally continuous with the
common law life tenancy afterwards.
Edward Donne of Horsendon knight and Anne his wife v. Thomas Jones of Horsendon armiger alias Thomas Jones of Llangattock and
lately of Abusteith in Wales, (Common Pleas, Trinity, 1540)
This action of covenant relates but does not come to issue on a complicated use that included what in later centuries would be termed an executory interest.
From a different perspective, it is another example of tenants being designated possessors until they succeeded in raising a specific sum from the
Basic or Complex Applications of the Statute of Uses that involved Wills
Branstell et al. v. Haughton, (Common Pleas, Easter 1540)
This action of trespass came to issue on whether there had been a disseisin prior to the Statute of Uses, but in the process recounted events subsequent
to the Statute of Uses that indicate that already in 1537 people were confident that active uses were not affected by the Statute of Uses. The use in
question was made in 1537 to a feoffee to uses to hold to the use of the grantor for a term of 22 years and thereafter to the grantor's named son in fee.
The grantor at the same time executed his will that presumably dictated to the executor what should be done with the term during the 22 year term.
Rex v. Thomas Shawe, son and heir of Henry Shawe, (Exchequer, Easter 1537)
This Exchequer enrollment records a challenge in King's Bench of an inquisition post mortem taken by royal commission out of and returned into chancery.
It shows that uses prior to the Statute of Uses could be made directly "for the performance of a last will" (not expressly to executors) and that, when
such a last will was not thereafter made in fact, the feoffees held to the settlor's intestate heirs. Also, when feoffees to uses successively died so
only one remained, the joint tenancy by virtue of the jus accrescendi, as would be expected, accumulated finally in the survivor alone and did not descend to the heirs of the
predeceasing feoffees. The death of the last surviving feoffee to uses caused the lands then to descend to the heir of the last surviving feoffee to uses,
and that heir likewise thereafter held the land in use to the settlor or the settlor's heirs. There remains a problem in this case as to why Shawe, the
heir of the last surviving feoffee to uses, continued to function in the case instead of being replaced after the Statute of Uses by the heir of the settlor,
Godfrey Foljambe, who by then should have been of age.
John Cosyn v. Thomas Castell, gentleman, (Common Pleas, Hilary, 1538)
This action of novel disseisin "de quibus" centers on a feoffment prior to the Statute of Uses of one who may or may not have himself been a feofee to uses.
On one side of the case it relates the simple action of the Statute of Uses that would turn a beneficial fee simple into a legal fee simple. On the other
side it raises questions about what the action of the Statute of Uses would be on a use in which the purpose was the performance of a will, particularly
in regard to a will directive for the testator's widow to sell the land. The case does not itself raise the issue of when the statute would act on such
a use, but the existence of such situations complicates any easy view about the implementation of the Statute of Uses.
In re Estate of Hilley, (King's Bench, Easter, 1538)
This appointment of an attorney to deliver seisin retails the actions of feoffees to uses who held to the use of performance of a last will to carry out
Richard Alen v. John Chorlton of Wellington, gentleman, (Common Pleas, Michaelmas, 1539)
This case of ejectment indicates that, as would be expected from the words of the Statute of Uses, the statute did not act on arrangements in which
those holding a term of years held to the use of beneficaries. In this situation, the beneficiary had made a will devising the proceeds of the lease for
his wife and children.
Roger Wygston of Wolstan, armiger, & William Wygston,
gentleman v. John Preston of London, citizen and mercer of
London, (Common Pleas, Michaelmas, 1539)
This action of debt on a performance bond for the performance of the terms of an indenture concerns a use made prior to the Statute of USes in which the
lands in a use were to be sold for the performance of the terms of the will if the goods the executors held were insufficient. After the Statute of Uses
the goods were found in fact to be sufficient. The feoffees were not explicitly mentioned, but the lands would apparently have still been sold to perform
the terms of the will, since the reversioners intervened by providing sufficient money to complete the performance of the will. The performance bond and
the indenture were made primarily to secure the reversioners in their estate against the executors but also to ensure the continued performance of the
other wills provisions.
Richard Broke v. Thomas Cootys of Latton, Essex, miller & Christofer Cootys of London, haberdasher, (Common Pleas, Michaelmas, 1539)
This case of trespass has a simple provision of a use beneficiary before the Statute of Uses who provided by will a life estate for his wife; the case
also illustrates the effect of the right of increase among joint tenants and the relationship of feoffees to uses to the new husband of a female beneficial
John Constable, armiger & John Swale, gentleman v. Edward, Archbishop of York, (Common Pleas, Michaelmas, 1539)
This set of four arranged actions of quare impedit involved a common recovery to the use of a settlor who thereafter made his will and died before
the Statute of Uses. The will apparently makes the settlor the beneficiary either for life or as tenant in fee tail. The actual issue of the case
seems to be the validity of a provision that after the testator's death would have three persons have possession of the lands until they had levied
from the profits a sum of 1,000 pounds, at which point the lands would continue on the settlor's heir, either in fee simple or fee tail. The process of
the cases make it seem likely that the issue was discussed in court before being discontinued in Easter term 1540;
the levying of the sum of money should have been possible
before the Statute of Uses in the chancellor's court of conscience, but not at common law.