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 *371for 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 re*372cover and bold tbe possession, until a Court of Chancery, upon tbe whole circumstances of tbe case, shall otherwise order and decree.