Bacon v. Taylor

1 Kirby 368

• Court: Connecticut Superior Court
• Decided: January 15, 1788
• Status: Published

Opinions

By the Court.

As to the first, we are clearly of opinion — that, notwithstanding the words of the deed are expressive of a grant to Bacon, his heirs and assigns, yet, as it is in trust for Abigail Taylor, Ler children, their heirs and assigns, forever, the whole estate is vested in the children of Abigail, in fee.

The original of uses, was from the civil law, which allows a use different from the thing itself; and was introduced and supported by the clergy, to avoid the Statute of Mort-main. It had no legal foundation, but in fact was founded in fear and fraud, and was supported by the judges of chancery, who were at that day generally clergymen; and were very ready to adopt any method to avoid a statute which deprived them of such emoluments and influence. Bac. Abrid, tit. Uses.— It was considered the cestui que use, had neither jus in re, nor ad rem; and if the trustee broke his trust, there was no legal remedy against him, but an application must be made to chancery, and then not allowable against his heir. Neither the trustee, nor him to whose use, could forfeit; nor could the estate be extended against one or the other; and was therefore esteemed to be against the policy of law.— Several statutes were found necessary to remedy the many inconveniences which attended such conveyances — See Stat. Rich. III. cap. 1. And finally, the stat. 17 Hen. VIII was passed, whereby the whole estate was vested in the cestui que use, which settled the law respecting that kind of conveyances.— And this was the law and idea of our progenitors, when they emigrated to this country; — and for our courts to establish the doctrine of uses here, which would necessarily require a number of statutes to remedy the inconveniences resulting from such practice, can be neither wise or prudent.

The children of Abigail, having an absolute estate in the lands in question, the possession follows the use; and the plaintiff being only a mere nominal person in the deed, and no consideration arising from bim, be is considered as baying no legal estate in tbe premises, by wbicb be can recover tbe possession from tbe defendant, wbo, as guardian to tbe children, in tbeir right, may lawfully bold tb.e possession.