During the later sixteenth century, after the legislation against uses, uses were further refined towards the concept of trusts. A doctrine of trusts in real estate (landed property) was consolidated in the middle and late seventeenth century, particularly in the form of settlements of landed estates, a strategy which persisted into the nineteenth century and which has been considered to have been a major reason for the survival and consolidation of the great estates from the late seventeenth century. The doctrine of trusts was developed in Chancery, although the instruments which established the trusts were perfected and performed at Common Law. Notionally actions in a court of law, at the Common Law, these devices were fictitious and collusive -- they assumed the form of contested litigation and a legal decision, but the parties to the action colluded to achieve an end and some of the actors were indeed fictitious. The collusive and fictitious actions were abolished in the reform of the law of property in 1833. Chancery began to protect trusts in settlements from the 1650s, perhaps instigated by the gentry, but full protection was conferred by Lord Chancellor Nottingham (1673-82).
Why were trusts and settlements more successful in the seventeenth rather than the sixteenth century?
Women's interests in settlement
The Lady's Law (1732):
The devices and procedures
|To secure a title||on inheritance, on conveyance||Common Recovery, Action of Ejectment|
|To settle an estate||at marriage, at death of son, debt/mortgage||Final Concord and associated docs|
|To bar or dock an entail||at inheritance||Common Recovery, Final Concord and related docs|
|To preserve a married woman's estate||on her marriage||Final Concord and associated docs|
|strict settlement||provision for widow (jointure)||Final Concord, Common Recovery,|
|groom limited to a life estate||Action of Ejectment, and associated documents documents could all be involved|
|entails (eldest son)|
|portions charged on the estate for younger siblings|
|trustees to preserve the contingent remainder|
|marriage settlement||more limited objectives (to preserve a|
|woman's estate) (Amy Erickson)|
The collusive and fictitious actions
Action of ejectment
Purpose: to test and secure a title.
Origins: from an unusual angle in that it developed as a means of protecting the termor (lessee) and so related originally to leasehold, not freehold, land, and had thus had a real intention. The termor had been unprotected at law against the lessor; the first available action was covenant, then quare ejecit infra terminum (from 1230s); quare clausum fregit (a remedy in trespass against third parties assumed to be acting for the lessor). From the 1360s, de ejectione firme lay in such cases, but covered only damages not the recovery of the term; a decision in King's Bench in 1500, however, allowed recovery of the term so that it qualified as a chattel real; in 1574 KB ruled that the action lay against the termor not just third parties. [The difference between quare clausum fregit and de ejectione firme is that the former required forcible entry, the latter only wrongful possession].
Collusive procedure: from 1575-70. (i) the owner leased the land to a friend or, more usually, a barrister, to bring a collusive action; the owner ejected the barrister; the nominal lessee (the barrister) impleaded the owner, but the owner pleaded on his title, because the lessee (the barrister) then defaulted, the owner recovered the land with a secure and unimpeachable title. (ii) later form -- completely fictitious and no real persons involved; a fictitious lessee, John Doe, brought an action against a fictitious lessor, Richard Roe; the whole procedure was a paper exercise manipulated by owner and barrister; ejectment persisted after the other collusive actions, until 1852.
Purpose: to declare uses and make a new settlement
Origins: the final concord evolved in the twelfth century, out of agreements and compromises to litigation reached before the King or his court, with the first recognisable fine perhaps dating from about 1163; from 1195, the fine (final concord) was produced in tripartite form, with three exemplars, one being given to each of the two parties and the third (the foot) placed in the Exchequer at first, but then the Common Pleas; thus a record was kept of the agreement. Although originally compromising real litigation, the fine soon became a fictitious and collusive suit with the purpose of getting a record of an agreement.
Collusive procedure: the landowner who wants to make the settlement has a drafted a deed to lead the uses of a fine, which establishes the trustees and their purpose; the final concord is pleaded with the landowner as plaintiff and a friend as deforciant (defendant); the action is compromised by the deforciant recognising the plaintiff's right in return for a consideration; the landowner then has drafted a deed to declare the uses of a fine which establishes the trustees and the uses (for example, current tenant to hold a life estate, the land then to pass to his eldest son, provision for widow, provision for children, etc, which the trustees of the estate will oversee). The notion of trusts was partly precipitated by Tyrwhitt's case (1559) which established that a final concord could not create a use upon a use, so that from c.1560 Chancery began to afford protection to uses upon a use.
[Exemplification of a] common recovery
Purpose: to dock or bar (remove) an entail; to recover an estate without encumbrances.
Origins: in the warranty of charters (and thus title) in the twelfth century, but developing as a form of conveyance only in the late fifteenth century, in a collusive and fictitious action; originally, there was only one vouchee to warranty, but from Taltarum's case of 1472, two became the norm, the second a man of straw and fictitious.
Procedure: the landowner, on inheriting, wishes to remove (dock, bar) the entails established by a previous generation in order to make a new settlement; as tenant in tail, the landowner conveys the estate collusively to a tenant to the precipe (the precipe is the writ which will initiate the action for recovery); the tenant to the precipe is impleaded by the landowner (as demandant) by the writ precipe; the tenant to the precipe vouches to warranty a first vouchee, a real person, who comes into court and vouches to warranty a second vouchee, Hugh Hunt, who is a fictitious person; the defence of the tenant to the precipe collapses because Hugh Hunt does not come into court (he can't because he doesn't exist); the landowner recovers the estate unfettered by encumbrances. The actors (often written on the dorse of the common recovery): the demandant (real owner); the tenant to the precipe (collusive friend); the first vouchee to warranty (real); the second vouchee to warranty (Hugh Hunt, a fictitious person).
Why was there a need to dock entails?: (i) entails from the previous generation became outdated; there was a new need to make provisions for the current owner and his family into the foreseeable future -- his wife and his children not within the previous settlement; (ii) the question of how far perpetuities (such as entails) should be allowed to reach into the future -- at least 21 years expected.
A theoretical sequence
Earl Basset died; his son and heir, Sir Bertie Bassett inherited; he wanted to marry Lady Dolly Mixture; he needs then to dock the entails of Earl Bassett's settlement and make new provisions of his own for his own family into the foreseeable future; he initiates an action of ejectment to establish his title; for further surety, he initiates a common recovery to remove the encumbrances; he now has an unfettered fee simple in the estate; he establishes a new settlement through a deed to lead the uses of a fine, a final concord, and a deed to declare the uses of a fine.
The effects of Sir Bertie's settlement
And now another question: how are the portions (cash) raised?
The charging of cash portions against the estate for younger children needed the ability to raise cash charged against the estate, in particular marriage portions for daughters, whcih increased dramatically: in 1552 their mean size was 500 pounds, but by 1724 9700 pounds, a nominal increase of 900%, but a real increase from an index figure of 110 in 1525 to 620 in 1725.
Methods of raising cash:
The ability to raise cash depended crucially on changes in the nature of the mortgage. Before the early seventeenth century, the mortgage was a short-term loan of principal with interest, with the emphasis on short-term. Since both bonds and mortgages were short-term, the borrower was necessarily forced to re-borrow to redeem the existing loan or face the possibility of foreclosure. Since also in mortgages, land was the collateral, the risk involved was losing the estate.
A radical change occurred in the nature of the mortgage in the early seventeenth century through the development of the equity of redemption, possibly during the Chancellorship of Bacon (1617-21), certainly by Emmanuel College v. Evans (1625). With this change, even if the principal was not redeemed, provided the interest was paid by the due dates, the mortgagor remained the owner of the land and could redeem at any time. Again this protection -- the equitable estate in the land -- was offered by Chancery. This new protection allowed the capitalisation of land, so that liquid capital could more easily be raised against land without the danger of forfeiture. Consequently mortgage terms were extended to 500 and even 1000 years. Amongst other matters, cash portions could thus be more easily raised against the estate.
Tenures other than freehold
Copyhold subsisted in tenure by the custom of the manor and evolved as one
form of tenure out of customary or unfree tenures in the fifteenth century, as
tenure by copy of the court roll. Tenants were required to convey their lands
by surrender and admission in the manorial court. Copyhold as a form of tenure
was only abolished in 1926.
Copyhold presented an issue for conflict between landlords and tenants in the sixteenth century. Theoretically regulated by the custom of the manor, copyholders had no access to the common law courts for redress, but from the fifteenth century Chancery offered some protection by enforcing the customs of the manor against the lord. Protection was further extended by the Court of Requests but the cost of access may have limited recourse to the central courts unless there was a 'common purse'. By the late sixteenth century, the common law courts began to offer remedy through the action of ejectment: a copyholder could sub-let for a short term and his lessee could bring an action of ejectment to recover the land, thus providing a convoluted action against the lord. This remedy may have been available from c.1550 and was established in Melwich v. Luter (1588).
The wider context of copyhold questions: the Brenner debate
Brenner suggested that for economic reasons lords were attempting to convert copyhold to leasehold to limit rights of inheritance and thus allow the exaction of economic rents. The problem of copyhold for lords was that the rent was acted upon by custom, so that lords could often only increase the overall rent through entry fines when the copyhold fell in. The extent of this problem has become a matter of contention. By the late sixteenth century it seems probable that it was difficult to convert and that the only remedies for financially-pressed lords were:
Alocal example: dispute at Wigston Magna went to Chancery in 1586; the Chancellor interpreted the clause sibi et suis (to him and his) as meaning copyhold of inheritance against the lord's claims; as a result of this lost case, the lord in 1606 sold the freehold to the copyholders.
The structure of copyhold: (i) Midlands -- copyhold of inheritance; (ii) S.W. -- copyhold for lives (usually three), but effectively hereditary.
In a similar vein, the length of leases was reduced from long leases in the early sixteenth century to shorter leases, to allow the lease to fall in more regularly and revise the rent.
By the late sixteenth century, the standard rural lease was assumed to be 21 years or three lives (that is, the expected duration of the term of current tenant, widow and one heir). In the eighteenth century, however, new building development encouraged longer leases in urban areas, in 'building leases'. The intention was to act as an incentive to builders to invest in building, so landlords granted beneficial leases of, in the early eighteenth century 800 years, but by the late eighteenth century standard building leases of 99 years. The builder thus assumed all the costs of building and paid a ground rent only.