
    Bacon v. Taylor.
    This was an action of ejectment, to recover tbe possession of certain lands described in tbe declaration. Tbe defendant pleaded — That tbe only title and claim of tbe plaintiff, was founded on a certain deed from one Nathaniel Cornwell, of Middletown; in and by which deed, tbe said Cornwell, for, and in consideration of the- love, good will, and affection, which be bore to bis niece, Abigail Taylor, wife of Joseph Taylor (tbe defendant) did give and-grant to Jeremiah Bacon (tbe plaintiff) and to bis heirs and assigns, tbe lands demanded, to bold in trust, for tbe said Abigail Taylor, during tbe term of her natural life; and after her decease, in trust, for tbe children born, or to be bom of the said Abigail, and to their heirs- and assigns, forever: And that the said Abigail is deceased, leaving children of her body, by tbe defendant, viz. Jeremiah, John, Joseph, and Abigail: That said children are all minors; and that tbe defendant, their father, is tbe legal guardian to said minors, and in their behalf, and as guardian, is in possession of the- land demanded, and holds the same in their right.
    To which there was a demurrer, and joinder in demurrer.
    Two questions were made in this case:—
    1. What estate is vested in the children of said Abigail?
    2. Whether the defendant, as guardian to said children, has the right of possession during their minority? And,
   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.

Sherman and Ellsworth, JJ.,

dissenting. It appears manifestly to us, to have been tbe intent of tbe grantor of the lands in question, to vest tbe legal title in tbe plaintiff, subject to a trust, for tbe purposes mentioned in tbe deed; wbicb intent should take effect, unless it be against law.

By tbe common law of England, feoffments in trust clearly vested tbe legal title in tbe feoffee, and an equitable right or lien only in tbe cestui que trust, until tbe statute of 27 Hen. VIII. called tbe Statute of Uses; wbicb statute was made to remedy particular inconveniences that cannot happen in this state; of wbicb tbe principal one was, that tbe Statute of Mortmain was liable to be defeated; — another, that tbe lord lost bis wardship, reliefs, marriages, and escheats; a third was, that as estates passed by way of use, from one to another, by bare words, without any solemn ceremony, or record of tbe transactions, purchasers, and others, that bad right, were imposed on.— Other inconveniences were also enumerated in tbe preamble, which are since obviated by a more enbgbtened course of practice in tbe Courts of Chancery, who, for near a century, have uniformly decided — that tbe trust descends, may be aliened, is bable to debts, to forfeiture, and even to tbe curtesy of tbe husband;- — -by wbicb means, as Judge Blackstone observes (2 Com. 337.) Trusts are made to answer in general, all tbe beneficial ends of uses, without tbeir inconveniences or frauds.” — Inoperative here, therefore, are tbe reasons for tbe Statute of Uses; a statute, indeed, wbicb never bad an effect in England, to prevent tbe creation of trust estates, but only to substitute tbe term trust for use, and vary a little tbe form of words by wbicb tbe trust is raised, so as to express a use upon a use, or a use upon a term of any length; or that tbe feoffee is to pay over tbe profits.— So expressed, tbe feoffee still bolds tbe legal estate, and tbe cestui que trust bath bis remedy only in chancery. (See Bac. Abrid, tit. Uses — and 2 Black. Com. 327-337.) — Thus stands tbe common law of England, upon tbe doctrine of trusts; wbicb we do not think to be unreasonable, or repugnant to any principle or decision of our own.

As to tbe right of a donor to create a trust — Why may be not, who is admitted a right to give bis estate absolutely to whom be pleases, give it, subject to a trust, or an equitable lien, for tbe benefit of a person or persons whom be wishes, and it may be bis duty to provide for; but not to intrust with tbe disposal or management of tbe whole estate? And where is tbe danger of fraud or imposition, when all the interest that any one bath in tbe estate appears of record, as must be the ease here", and is subject in law or equity to all reasonable duties and dispositions? If, under any circumstances, it becomes reasonable, that tbe feoffee should transfer tbe possession, or even tbe fee, to- tbe cestui que trust, and be refuses to do it, a Court of Chancery may compel him, taking care, at tbe same time, that equity be done to him also; and that be be reimbursed bis charges incurred for tbe benefit of tbe trust, as in repairs, taxes, or otherwise.

It is therefore, our opinion, that the plaintiff in this case, bath tbe legal estate in him, and right at law to recover and bold tbe possession, until a Court of Chancery, upon tbe whole circumstances of tbe case, shall otherwise order and decree.  