XI. Uses and Equity

Uses were the antecedents of the modern day trust. Once uses were well established, in the fifteenth century, one would describe it in the following way. Since the common law did not allow wills to be made concerning land and since Quia emptores prohibited lords from objecting to alienations, a tenant of a fee simple could alienate the fee simple to joint tenants. As an inter-vivos transfer, this was unobjectionable. The joint tenants had the fee simple, but if this was a collusive grant, the joint tenants could hold it solely for purposes specified by the grantor: the grantor had given up the common law title, but had retained every usage of the land. There were substantial benefits to this process, if the joint tenants were trustworthy. One could instruct them about what to do with the land after you died: since they were the common law title holders, of course, they could thus choose to do it. If they were careful, they could alienate to another group of joint tenants to keep the land from falling into wardship (only at the death of the last joint tenant would the land go into wardship: that could be avoided by a grant to another set of joint tenants). Thus, one could get greater benefit from land by alienating it to joint tenants than by keeping the legal title. The only complication was the reliability of the joint tenants, called the feoffees to uses. In the late fourteenth century the chancellor began to supervise these arrangements sporadically, making the feoffees do what they should; by mid-fifteenth century it had become a regular jurisdiction making the chancellor the head of a court of conscience; that court would later develop into what came to be known as a court of equity. If this is how one would describe the use in the fifteenth century, however, it does not even come near to answering the process by which the use began in the fourteenth century after the Black Death (1348-51, first plague).

XI.A. Godwyne v. Profyt (after 1393): a petition to the Chancellor


To the most reverend Father in God, and most gracious Lord, the bishop of Exeter, Chancellor of England.

Thomas Godwyne and Joan his wife, late wife of Peter at More of Southwerk, most humbly beseech that, whereas at Michaelmas in the 17th year of our most excellent lord King Richard who now is, the said Peter at More in his lifetime enfeoffed Thomas Profyt parson of St. George's church Southwerk, Richard Saundre, and John Denewey, in a tenement with the appurtenances situated in Southwerk and 24 acres of land 6 acres of meadow in the said parish of St. George and in the parish of our Lady of Newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said Peter, enfeoff the said Joan in all the said lands and tenements with all their appurtenances for the life of the said Joan, with remainder after her decease to one Nicholas at More, brother of the said Peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to Holy Church for his soul; whereupon the said Peter died.[1] And after his death two of the said feoffees, Richard and John, by the procurement of one John Solas, released all their estate in the said lands and tenements to the said Thomas Profyt, on the said conditions, out of the great trust that they had in the said Thomas Profyt, who was their confessor, that he would perform the will of the said Peter [at More] in the form aforesaid; and this well and lawfully to do the said Thomas Profyt swore on his Verbum Dei and to perform the said conditions on all points. And since the release was so made, the said Thomas Profyt, through the scheming and false covin of the said John Solas, has sold all the lands and tenements aforesaid to the same John Solas for ever.[2] And the said John Solas is bound to the said Thomas Profyt in 100 pounds by a bond to make defence of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said Joan, Nicholas, and Holy Church are like to be disinherited and put out of their estate and right, as is above said, for ever, tortiously, against the said conditions, and contrary to the will of the said Peter [at More]. May it please your most righteous Lordship to command the said Thomas Profyt, Richard Saundre, and John Denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said Joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious Lord, shall be found and proved; for God and in way of holy charity.

1. Why is this document directed to the Chancellor? What did he have to do with dispensing justice?[3] Why not take the case to the king's court? Such petitions to the chancellor came to be settled by the chancellor in his court of conscience, new from around 1370. This court handled matters on the basis of fairness and did not formally change the law. For matters in which the chancellor wanted to change the law, he would issue a new writ (and thus begin a new common law remedy). When he only wanted to remedy the occasional problem inevitable given rigid application of rules of law in the common law courts, he took an individual case and settled it himself. These cases tended to fall into categories and even produce new rules themselves. In the sixteenth and seventeenth centuries these rules cohered into a new set of rules: equity.

2. Was the grant to the three feoffees by Peter at More conditional? What written evidence would you expect to find of the grant? Think of the previous assignment. What mechanism might the parties have used? Who would have the deeds? [4]

3. What advantage did this arrangement give to Peter? Could he change his mind? Chancery soon distinguished between grants to feoffees in which specific directions were given at the very time of the grant and grants to feoffees in which the feoffees were merely to follow his will as expressed later. In which situation would Chancery have allowed the feoffor to change his mind about the uses to which he wanted the feoffees to hold?[5] Why not in the other situation?

4. The feoffees here had a fee simple held jointly. What happened to the interest of the others when one died? Would there be wardship, marriage, or relief?

5. What sense does it make for Peter at More to give up his legal estate in the land? Legal estates are interests that should be desirable. That people would alienate their legal estate in land prior to the time at which there was a secure protection for their expectations indicates a substantial social perception of law as an artificial system that could be manipulated.

6. What is the definition of a widow's dower right? How does this kind of arrangement affect dower right? Dower right only appended to land that the husband had held heritably at any time during the marriage. If the husband had never held the legal title himself during the marriage, but had instead put the land into the holding of the joint tenants, then no dower right would append and the wife would be that much more dependent on the husband's good will.

7. You have seen how the common law courts could inquire of a jury about the way in which the parties to a grant had felt that the control of the land had actually transferred from grantor to grantee (in the Whilton dispute). Clearly, the justices could have done precisely the same kind of inquiry with these grants to joint tenants. Since the courts could have voided these grants to joint tenants and thus have rendered stillborn the use, one must find the reason they did not. It is improbably to think that the justices favored depriving the magnates of their feudal incidents: redistribution of wealth was not one of the central principles of the law. Four motives, however, seemed desirable after the Black Death and provided the rationale for allowing the uses:

a. Posthumous provision for payment of debts. Unless special provision was made at the time of the making of a debt, repayment of the debt was an obligation of the executors (who had control over goods and chattels of the deceased), not on the heir (who received the land). A grant to joint tenants with instructions for them to pay off debts posthumously worked effectively to help people fulfil their ethical obligations. Such provisions occur frequently in use instructions to feoffees to uses.

b. Securing prayers for one's soul. Traditional methods for endowing ecclesiastical institutions were not terribly effective. One would have to get a royal licence to alienate lands into the hands of a church (thus, into "mortmain"--"dead-hand", because the church did not die), but that was not the real problem. A grant to a church for prayers required the heir to keep close watch on the church, and litigation if they did not pray. Better by far to grant to joint tenants with instructions that they pay the revenue to the church if they prayed: no prayers, no pay. In this situation, the church would have to show that it prayed, rather than requiring the heir to show that they had not. Edward III himself used a use for this purpose.

c. Giving full value to purchasers. Land sold still remained subject to the dower rights, perhaps from the seller's seller's seller's widow: who could estimate the probable value to the purchaser if he would not even know what women might assert dower claims to the land? Land that was always held in use was free of dower claims.

d. Strengthening the husband/father. The father/husband, by putting the land in use, acquired greater discretionary authority over children and widow. Some early use instructions ordered the feoffees to hold the land to the widow for her life unless she remarried. The father could likewise leave his decision until late in life about which children would benefit or how much his wife would have, and he could change his mind as often as he liked. Later on, use instructions further augmented a father's power by instructing the feoffees to do certain things with the land after his death if a child did a certain thing, as with marrying a particular person, etc.

After the Black death these purposes seemed not only legitimate but absolutely desirable; they correspond to other changes in the law after the Black Death that we will examine.

Still, the question must arise: why was there no opposition? Even if the motives were socially unobjectionable, the effect would often have been to deprive very important people of the profitable rights of wardship and marriage and the exercise of patronage. The very rich are not known for having their rights diminished without objection. As it happens, however, there was a particular pool of land from which uses could be made without depriving any lord of what were considered proper rights of wardship and marriage. To understand this, one must understand "prerogative wardship." Prerogative wardship was a right that pertained only to the king.

(1) In ordinary wardship by a baron over a tenant who inherited lands to be held from more than one lord, the liege lord (let us assume, the baron) would get wardship of the body and wardship over those lands held from him; other lords would have the wardship of the lands held of them. In addition, since each lord exercised all the rights of the ward for that fee, each got also the wardship of those tenants in wardship to their tenant in regard to the fee held of him.

Ordinary wardship of one tenant's land

Baron Lord Lord


[wardship of [wardship of land [wardship of lands

^ body & lands] held of him] held of him]

tenant ^ ^ ^

fee 1 fee 2 fee 3

^ ^ ^

subtenants subtenants subtenants

in wardship in wardship in wardship

(2) Prerogative wardship was different. When a tenant held of the king, then the king had not only the wardship of the lands held of him (and of the subtenants held of that fee) but also of the lands held of other lords. Thus, in the above diagram, had the baron been the king, the king would have had the wardship not only of fee 1, but also of fees 2 & 3, thus depriving the other lords of the wardship rights that usually would have pertained to them. The lords hated prerogative wardship rights.

(3) Quia emptores did not apply to the king: the king certainly could and did object when his tenants alienated their lands to others. Such alienations required the king's consent. The king could thus prevent his tenants from alienating to joint tenants to create a use; when he allowed them to do so, it was an act of patronage.

(4) The king could not control the actions of his tenants concerning lands held of other lords, that is, of lands not held of the king but that would fall to him by prerogative wardship. Were important people to alienate those lands to joint tenants, the lord of whom they were held would not object (he would not get wardship or marriage rights anyway) and the king could not object: they were not held of him.

Without seeming unjustly to deprive lords of wardship rights, uses could develop thus (1) by specific acts of patronage by the king to his tenants in chief and alternatively (2) by grants to joint tenants from lands that would otherwise fall into prerogative wardship. If these were the original ways in which uses became socially acceptable, then it is not surprising that there were no objections.

Once the use was established for "reasonable and necessary" objectives, then they could also be used by others with purposes less in line with governmental objectives: avoiding the feudal incidents.

XI.B. Anon (1464)

Kiralfy, 260-261 (altered)

Note that this is a case at common law, not in chancery

In a writ of trespass for breaking his close and cutting down his trees, and trampling and consuming his grass etc.

Catesby [D]. You ought not have an action, for we say that a long time before the trespass supposed, one J.B. was seised of certain land (and he specified the place where the trespass was supposed to have been done) in his demesne as of fee and, being so seised of that land, enfeoffed the plaintiff in fee etc., to the use of the defendant etc., upon a confidence,[6] and then the defendant by sufferance of the plaintiff and at his will occupied the land and cut the trees in that land etc., and destroyed the grass, which is the same trespass on which the plaintiff has conceived this action.[7]

Jenney [P]. This is not a plea, for it is not certain matter -- the sufferance by the plaintiff and the defendant's occupying at the plaintiff's will, for this sufferance and will cannot be tried, for the intent of a man is not triable, and one must plead matter which could be tried by a jury if an issue were joined on it. And it cannot be at this sufferance of will of the plaintiff that the defendant occupied etc., and therefore in such a case, in order to get a proper issue of matter which can be traversed he should plead a lease made by the plaintiff to the defendant, to hold at his will, which is traversable and can be tried.

Catesby [D]. Why should he not have this matter, since it follows from the defendant enfeoffing the plaintiff to the defendant's use, and the defendant made the feoffment to the plaintiff on trust and confidence, and the plaintiff suffered the defendant to occupy the land, so that in truth the defendants occupied at his will. This proves that the defendant will be able to plead this feoffment on trust, to justify the occupation of the land on that account.

Moyle, JCP. That is a good matter to raise in Chancery, for there the defendant will aver the intention and purpose of the feoffment, for by conscience a man will have a remedy for that on the intention of the feoffment. But here by the course of the common law in the Common Bench or the King's Bench it is different, for the feoffee will have the land, and the feoffor cannot justify against his own feoffment, whether the feoffment was on confidence or not.

Catesby [D]. The law of the Chancery is the common law of the land,[8] and there the defendant can take advantage of such matter and feoffment; why, then, will it not be the same here?

Moyle, JCP. That cannot be so in this court, as I told you, for the common law of the land in this case differs from the law of the Chancery on the point.

Catesby [D], pleading over: as to the trees, to the feoffment of the land to the plaintiff on trust, as before etc., and that the defendant occupied the land by sufferance at will of the plaintiff. And, Sir, we have no other matter as to that, but as to the grass etc., we say that the plaintiff was seised in fee, and leased the land to the defendant, to hold at will etc., by which the defendant entered and did the trespass in the manner etc., upon which his action is brought here etc.

Jenney [P]. As to the plea of cutting the grass, to a plea pleaded in that way etc., [we have no need to answer], and as to destroying the grass, he traversed the lease.

And the others against this.

1. This is, obviously, one who believes himself to be a cestui qe use (he to whom the feoffees to uses hold the benefit of the land) being sued by the feoffees to uses. The court simply refuses to countenance the surfacing of the conditions of the feoffment. Why? Does this demonstrate hostility of the common lawyers to uses? That does not make sense, because the justices and serjeants themselves often had their land held in use and were feoffees to uses. If the common law had taken cognizance of the use, however, they would have "pierced the veil." The only way that the feoffees could perform their instructions was if the common law resolutely ignored them and considered that the feoffees had the whole common law title.

2. What sense does it make to have two different sets of court in which the legal rules are different on some points?

3. To approach the matter in a different way, is the use an artificial situation that would have collapsed if the common law had tried to enforce it? That is, did the growth of the use depend upon a common law so rigid that the estates could be manipulated? In this context, we shall talk about uses not as land held by one party for the benefit of another, but rather as land held by one party in fee simple at common law, but only for the benefit of another who had still an enforceable moral entitlement in Chancery. The difference is that the latter method incorporates the duality of legal systems on which the growth of uses depended.

XI.C. Russell's Case (1482)

Kiralfy, p. 262 (altered)

Common law, Court of King's Bench

In the king's bench one Thomas Russell and Alice his wife brought a writ of trespass for goods taken from Alice while she was single. The defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds.

Before the case was next to be heard in the King's Court an injunction issued out of the Chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for.

Then Hussey CJKB. asked Spelman and Fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict.

Fincham [P]. We would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the Chancellor if he disobeys.

Fairfax, JKB. He can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa.

Hussey, CJKB. We have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. The law will not make him pay the penalty provided in the injunction.

If the Chancellor wants to imprison him he must send him to the Fleet Prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us,9 and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you.

Nevertheless, Fairfax said he would go to the Chancellor and ask him if he would discharge the injunction.

And they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the Chancery injunction. And they said that if the Chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it.

1. Examine the procedural aspects of this case. What procedural tools does Chancery use? The distinctive devices of the chancery court of conscience were (1) interrogation of parties under oath instead of allegations tried by jury, (2) injunctions (orders to parties to do or not to do certain actions), and (3) the subpena (orders for a person to appear in court under the penalty of preordained monetary forfeiture). What can the common law courts do?

2. What, in the eyes of the common law justices, is the proper role of Chancery? Did they consider that the chancellor's court of conscience properly exercised a supervisory role over the common law courts? or was it an alternative forum, not meant to intervene directly in common law litigation?

XI.D. Hulkere v. Alcote

Proc. in Chanc.:2:xv-xvi

A petition to chancery, 15th century

To the right reverend father in God and gracious lord bishop of Bath, chancellor of England, your poor and continual bedwoman Lucy Hulkere, widow of Westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the King's Bench and in the Common Pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of Manthorpe in Lincolnshire and also of the manor of Gildenburton in Northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against Harry Alcote and Elizabeth of the foresaid Gildenburton within the same county of Northampton. And by collusion and fickle counsel of the foresaid Harry and Elizabeth his mother there was led and shown for him within the Common Pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid Common Pleas. Of the which false release proved she has a copy to show. [All this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. That it please your noble grace and pity graciously to grant a writ subpena to command the foresaid Henry Alcote and Elizabeth Alcote to come before your presence by a certain day by you limited in all haste that they may come to Westminster to answer to this matter abovesaid, for love of God and a deed of charity, considering graciously that the foresaid Harry Alcote, with another fellow of his affinity who is not lately hanged for a thief in France led her into a garden at Gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid Harry Alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother-in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead.

Pledges to prosecute: John Devenshire of Berdevyle in Essex and James Kelom of London. Returnable in Michaelmas term.

1. Clearly, this case does not involve uses. Early chancery adjudication on the basis of conscience was not so much about uses, as about problems that arose in the application of rigid rules of law, when chancery did not want to challenge the rules themselves but only relieve a few unconscionable results. For instance, the common law was absolute rigid that in debt litigation, when the creditor had a written and sealed bond to evidence the debt, the debtor could not allege that he had paid unless he had a written acquittance. That was a good rule. Nevertheless, it meant that a few careless debtors might end up paying twice. [Careful debtors would do one of two things: (a) get a written acquittance; (b) have the sealed bond cancelled.] Chancery would intervene to prevent an unscrupulous creditor from thus taking advantage of the common law rules to exact a second payment from the debtor. Similarly, when other common law rules, of which the chancery approved, created the occasional injustice, the disadvantaged person could petition the chancellor.

2. This is another aspect of Chancery, acting in default of the common law. What is the substance of her plea? Historians believe that a good many of the stories about cruelty and foul-play appended to the pleas are fictitious. Why would petitioners make up such things? What are the jurisdictions of Chancery?