1. Gilbert on Uses, p. 1.
2. Inst. 2. 23. 1. Vinnius, h. t. Bacon on the Statute of Uses, Law Tracts, p. 315.
3. Inst. 2. 23.12.
4. 2 Blacks. Com. 323. Sanders on Uses and Trusts. p. 14.
5. Bacon's Law Tracts, 310. Lord Bacon's reading on the Statute of Uses, has a scholastic and quaint air pervading it; but it is very instructive to read, because it is profoundly intelligent.
6. Lord Bacon says, that these properties of an use were exceedingly well set forth by Walmsley, J., in a case in 36 Eliz. to which he refers.-Bacon's Law Tracts, 307.
7. Bacon on Uses, Law Tracts, p. 312. Sugden on Powers, p. 5, 6.
8. 1 Co. 87. b. 100. b.
9. Bro. Feof. al use, pl. 30. Jenk. Cent. 8. Ca. 52. Co. Litt. 237. a. Preston on Estates, vol. i. 154.
10. Bacon's Law Tracts, p. 316.
11.Brent's case, 2 Leon. 16. Manwood, J., 2 And. 75. Preston on Estates, vol. i. 155, 156. 158.
12. 2 Blacks. Com. 334. Fearne on Executory Devises. by Powell, 86. note.
13. Bacon on Uses, Law Tracts, 335. 340
14. Dyer, J. in Bawell and Lucas' case, 2 Leon. 221. Holt, Ch. J. in Davis v. Speed, 12,Mod. Rep. 38. 2 Salk. 675. S. C.
15. Willes' Rep. 180.
16. Bro. Feof al Uses, 339. a. pl. 30. Mutton's case, Dyer, 274. b. Gilbert on Uses, by Sugden, 152-5.
17. Gilbert on Uses, by Sugden, 260. note. Spencer v. Duke of Marlborough, 5 Bro. P. C. 592.
18.Nicholls v. Sheffield, 2 Bro. 218. St. George v. St. George, in the House of Lords, cited in Gilbert on Uses, by Sugden, 157.
19.Woodliff v. Drury, Cro. E. 439. Mutton's case, Dyer, 274. b.
20.Roe v. Tranner, 2 Wils. Rep. 75. Holt, Ch. J. 2 Salk. Rep.675.
21. Gilbert on Uses, by Sugden,163. 176.
22. Sir Edward Sugden, in a note to his edition of Gilbert on Uses, p. 152 to 176. has given a clear and methodical analysis, definition, and description, of these various modifications of future uses. In Mr. Preston's Abstract of Titles, vol. i. 105, 106, 107. and vol. ii. 151. we have also illustrations of the various shades of distinction between them.
23. Co. Litt. 23. a. 271. b. Sir E. Clere's case, 6 Co. 17. b. Armstrong v. Wholesey, 2 Wils. Rep. 19.
24. Vol. i. 727. sec. 45, 46.
25. N.Y. Revised Statutes, vol. i. 724. sec. 24. Ibid. 738, 739. sec. 137, 138. 142. 146. Ibid. 727. sec. 47.
26. Lord Hardwicke is reported to have said, in the course of his opinion in Hopkins v. Hopkins, (1 Atk. Rep. 591.) that the statute of uses had no other effect than to add, at most, three words to a conveyance. This was rather too strongly expressed; but I presume the abolition of uses with us will not have much greater effect. It was the abolition of a phantom. The word grant is not more intelligible to the world at large, than the words bargain and sale; and the fiction indulged for 200 years, that the bargain raised a use, and the statute transferred the possession to the use, was as cheap and harmless as any thing could possibly be. It would, perhaps, have been as wise to have left the statute of uses where it stood, and to have permitted the theory engrafted upon it to remain untouched, considering that it had existed so long, and had insinuated itself so deeply and so thoroughly into every branch of the jurisprudence of real property.
27. Dyer, 155. 1 And. 37. Meredith v. Jones, Cro. C. 244. Lady Whetstone v. Bury, 2 P. Wms. 146. Doe v. Passingham, 6 Barwn & Cress. 305.
28.Jackson v. Cary, 16 Johns. Rep. 302.
29. Preston on Abstracts, vol. i. 307-310,
30. Lord Mansfield, in Burgess v. Wheate, 1 W. Blacks. Rep. 160.
31.North v. Champernoon, 2 Ch. Cases, 78. Lord Alvanley, in Philips v. Brydges, 3 Vesey's Rep. 127.
32. Lord Hardwicke, in Garth v. Baldwin, 2 Vesey, 655. Sanders on Uses, 187. Phil. edit. 1830.
33. Sugden's Int. to Gilbert on Uses, contains an interesting summary of the rise and progress of uses, down to the statute of uses. A masterly sketch is given by Lord Mansfield, in his opinion in Burgess v. Wheate; but the historical view of this subject, by Sir William Blackstone, in his Commentaries, (vol. ii. 327-337.) is neat and comprehensive to a very superior degree.
34. 1 W. Blacks. Rep. 180.
35.Gibson v. Mountfort, 1 Vesey's Rep. 491. Lord Hardwicke, in Villiers v. Villiers, 2 Atk. Rep. 72. Oates v. Cooke, 3 Burr. Rep. 1684. Fisher v. Fields, 10 Johns. Rep. 495. Preston on Abstracts. vol. ii. 233, 234. Sanders on Uses, 215,216.
36.Neville v. Saunders, 1 Vern. 415. Say & Seal v. Jones, 1 Eq. Cas. Mr. 383. pl. 4. Harton v. Harton, 7 Term Rep. 652. Bagshaw v. Spencer, 1 Coll. Jurid. 378. Benson v. Le Roy, 4 Johns. Ch. Rep. 651
37. Sanders an Uses, 186.
38. Preston on Estates, vol. i. 190
39. Lord Alvanley, 3 Vesey's Rep. 707. Fisher v. Fields, 10 Johns. Rep. 495. Steeve v. Steeve, 5 Johns. Ch. Rep. 1. Movan v. Hays,1 ibid. 339. Rutledge v. Smith, 1 McCord's Ch. Rep. 119. In North Carolina, the law on this point is the same as the English law was before the statute of frauds, and parol declarations of trust are valid. Foy v. Foy, 2 Hayw. 131.
40. Willis v. Willis, 2 Atk. Rep. 71. Bartlett v. Pickersgill, 1 Eden, 515. Boyd v. MCLean, 1 Johns. Ch. Rep. 582. Botsford v. Burr, 2 ibid. 405. Sterret v. Sleeve, 5 ibid. 1. Dorsey v. Clarke, 4 Harr. & Johns. 551. Story, J. in Powell v. Monson and Brimfield Man. Company, 3 Mason's Rep. 362, 363. Start v. Cannady, 3 Littell, 399.
41. Lloyd v. Spillet, 2 Atk. Rep. 150:
42. Sanders on Uses, 227.
43. Ryal v. Ryal, 1 Atk. Rep. 59. Amb. 413. Bartlett v. Pickersgill, 1 Eden's Rep. 515. Lane v. Dighton, Amb. 409. Wray v. Steele, 2 Ves. & Beam. 338. Story, J., 3 Mason's Rep. 364.
44. Kirk v. Webb, Prec. in Chan. 84. Ryal v. Ryal, Amb. 413.
45. Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252. and the various cases there referred to.
46. Randall v. Bookey, Prec. in Chan. 162. Emblyn v. Freeman, ibid. 541. Stonehouse v. Evelyn, 3 P. Wms. 252. Digby v. Legard, Cited in 3 P. Wms. 22, note.
47. Neilson v. Blight, 1 Johns. Cas. 205. Weston v. Barker, 12 Johns. Rep. 281. Small v. Oudley, 2 P. Wms. 427. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 129.
48. Maure v. Harrison, 1 Equ. Cas.,Abr. 93. K. 5. Wright v. Morley, 11 Vesey's Rep. 12. 22.
49. Murray v. Ballou, 1 Johns. Ch. Rep. 566. Shepherd v. McEvers, 4 ibid. 136. Graves v. Graves, 1,Marshall's K. Rep. 166. Griggett v. Well, 2 ibid. 149. Marshall, Ch. J., 1 Cranch's Rep. 100.
50. Broaden v. Walker, 2 Harr. & Johns, 2P5. Rutherford v. Rus & Dess. Equ. Rep. 350.
51. P. 18, 17.
52. Vol. i. 727. sec. 47. 49.
53. N.Y. Revised Statutes, vol. i. 728. sec. 50-54.
54. This provision gives the like effect to such conveyances as equity had already given to voluntary conveyances. They are void as against existing creditors, but if the party be not indebted, and the case be free from fraud in fact, they are good as against subsequent creditors. Battersbee v. Farrington, 1 Swanston. 106. Reade v. Livingston, 3 Johns. Ch. Rep. 431. The statute is silent as to subsequent creditors in that case, but it is to be presumed that they would also be entitled to relief, according to the doctrine in Reade v. Livingston, if there was sufficient ground to infer a fraudulent intent.
55. N.Y. Revised Statutes, vol. i. 728, 729. sec. 55, 58, 60, 61, 62.
56. This is only declaratory of what was the law before. Preston un Abstracts, vol. ii. 230. Sanders on Uses and Trusts, 219. And it follows of course, that the trust attaches upon the purchaser with notice of it, unless he be a purchaser from a person who had purchased for a valuable consideration without notice. Lowther v. Carlton, 2 Atk. Rep. 241. and see supra, p. 172.
57. N.Y. Revised Statutes, vol. i. 730. sec. 64, 65.
58. Ibid. 730. sec. 68, 69, 70, 71.
59. Shepherd v. McEvers, 4 Johns. Ch. Rep. 136. Sir Wm. Grant, in 1 Jac. & Walk. 68.
60. Trust property does not pass to the assignees of the trustee, except subject to the trust; (Godfrey v. Furzo, 3 P. Wms. 185. Ex parte Dumas, 1 Atk. Rep. 231. Ex parte Sayers, 5 Vesey's Rep. 169. Dexter v. Stewart, 7 Johns. Ch. Rep. 52.) and equity will lay hold of trust property passing to the representatives of the trustee, and direct it for the benefit of the cestui que trust. Dunscomb v. Dunscomb, 2 Harr. & Munf. 11. Ridgely v. Carey. 4 Harr. & McHenry. 167.
