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CHAPTER XX.: OF ALIENATION BY DEED. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ALIENATION BY DEED.
In treating of deeds, I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.
I. First, then, a deed is a writing sealed and delivered by the parties.(a) It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, ϰατ’ εξοχην, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed.(b) If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on **296]one part and half on the other. Deeds thus made were denominated syngrapha by the canonists;(c) and with us chirographa, or hand-writings;(d) the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed.1
(e)II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for the purposes intended by the deed: and also a thing, or subject-matter, to be contracted for; all which must be expressed by sufficient names.(f) So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.
Secondly, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract;(g) nor upon fraud or collusion, either to deceive purchasers bona fide,(h) or just and lawful creditors;(i) any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect: for it is construed to enure, or to be effectual, only to the use of the grantor himself.(k)2 The consideration may be either *[*297a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant:(l) and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers.3
Thirdly, the deed must be written, or I presume printed,4 for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.(m) Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3 enacts, that no lease estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value,) shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.5
Fourthly, the matter written must be legally or orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which *[*298sufficiency must be left to the courts of law to determine.(n)6 For it is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity;7 and therefore I will here mention them in their usual(o) order.
1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.(p)
2, 3. Next come the habendum and tenendum.(q) The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be “to A. and the heirs of his body,” in the premises, habendum “to him and his heirs forever,” or vice versa; here A. has an estate-tail, and a fee-simple expectant thereon.(r) But, had it been in the premises “to him and his heirs;” habendum “to him for life,” the habendum would be utterly void;(s) for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum, “and to hold,” is now of very little use, and is only kept in by custom. It was sometimes formerly *[*299used to signify the tenure by which the estate granted was to be holden; viz., “tenendum per servitium militare, in burgagio, in libero socagio, &c.” But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters that the tenements shall be holden de capitalibus dominis feodi;(t) but as this expressed nothing more than the statute had already provided for, it gradually grew out of use.
4. Next follow the terms of stipulation, if any, upon which the grant is made; the first of which is the reddendum, or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as “rendering therefore yearly the sum of ten shillings, or a pepper-corn, or two days’ ploughing, or the like.”(u) Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit.(w) To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some or one of them, and not to any stranger to the deed.(x) But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee.(y)
5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated: as “provided always, that if the mortgagor shall pay the mortgagee **300]500l. upon such a day, the whole estate granted shall determine;” and the like.(z)
6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted.(a) By the feodal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense.(b) And so, by our antient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered.(c) Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestral,) this also bound the lord to warranty;(d) the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty,(e) because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title.(f) But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound in the implied warranty, and not his heirs;(g) because it is a mere personal contract on the part of the feoffor, the tenure (and of course the antient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, **301]no warranty whatsoever is implied;(h) they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant.(i)
These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a c’ause of warranty was added to the ancestor’s grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood;(k) and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as, where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son.(l)Collateral warranty was where the heir’s title to the land neither was, nor could have been, derived from the *[*302warranting ancestor; as, where a younger brother released to his father’s disseisor, with warranty, this was collateral to the elder brother.(m) But where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty,) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor.(n)
In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor.(o) But though, without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent, (if he had them not before,) and must fulfil the warranty of his ancestor: and the same rule(p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon the son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. I. c. 3, declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. *[*303to make the same provision universal, by enacting, that no collateral warranty should be a bar, unless where assets descended from the same ancestor;(q) but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20, notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he also be heir to the wife. And by statute 4 & 5 Anne, c. 16, all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainderman or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar:(r) which was therefore formerly mentioned(s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the land: entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon.(t) And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.8
**304]7. After warranty usually follow covenants,9 or conventions, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee’s quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c.(u) If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty.10 It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other.
8. Lastly, comes the conclusion, which mentions the execution and date of deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned.(w) Not but a deed is good, although it mention no date; or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.(x)11
I proceed now to the fifth requisite for making a good deed; the reading of it. This is necessary wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.(y)
*[*305Sixthly, it is requisite that the party, whose deed it is, should seal,12 and now in most cases I apprehend should sign it also.13 The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely antient. We read of it among the Jews and Persians in the earliest and most sacred records of history.(z) And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase.(a) In the civil law also,(b) seals were the evidence of truth, and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though Sir Edward Coke(c) relies on an instance of king Edwin’s making use of a seal about a hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters.(d) In like manner, and for the same insurmountable reason, the Normans, a brave but **306]illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the Confessor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England.(e) At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names and signing with the sign of the cross.(f) And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals.(g) The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained.14
This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds, “sealed and delivered,” continues to this day; notwithstanding the statute 29 Car. II. c. 3, before mentioned, revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds: in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other.(h)15
A seventh requisite to a good deed is, that it be delivered16 by the party himself or his certain attorney, which therefore is *[*307also expressed in the attestation; “sealed and delivered.”17 A deed takes effect only from this tradition or delivery; for if the date be false or impossible, the delivery ascertains the time of it.18 And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing,(i) and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes.(j)19
The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses:20 though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers,(k) which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, (that not being always in their power,) but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum: thus:—“hijs testibus Johanne Moore, Jacobo Smith, et aliis, ad hanc rem convocatis.”(l) This, like all other solemn transactions, was originally done only coram paribus,(m) and frequently when assembled in the court-baron, hundred, or county-court; which was then expressed in the attestation, teste comitatu, hundredo, &c.(n) Afterwards the attestation of other witnesses was allowed, the trial in **308]case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated and joined in the verdict;(o) till that also was abrogated by the statute of York, 12 Edw. II. st. 1, c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner.(p) But in the king’s common charters, writs, or letters-patent, the style is now altered: for at present the king is his own witness, and attests his letters-patent thus: “Teste meipso, witness ourself at Westminster, &c.,” a form which was introduced by Richard the First,(q) but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the Eighth:(r) which was also the era of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general; and therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom or on the back of the deed.(s)
III. We are next to consider how a deed may be avoided, or rendered of no effect. And from what has been before laid down, it will follow, that if a deed wants any of the essential requisites before mentioned; either, 1. Proper parties, and a proper subject-matter: 2. A good and sufficient consideration: 3. Writing on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing, and, by the statute, in most cases signing also: or, 7. Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part: unless a memorandum be made thereof at the time of the execution and attestation.(t)21 2. By breaking off, or defacing, the seal.(u)22 3. By delivering it up to be cancelled; *[*309that is, to have lines drawn over it in the form of lattice-work or cancelli: though the phrase is now used figuratively for any manner of abliteration or defacing it.23 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as the husband, where a feme-covert is concerned; an intant, or person under duress, when those disabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was anciently the province of the court of starchamber, and now of the chancery:24 when it appears that the deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery.(w) In any of these cases the deed may be avoided, either in part or totally, according as the cause of avoidance is more or less extensive.
And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances; which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.
I. Of conveyances by the common law, some may be called original or primary conveyances; which are those by means whereof the benefit or estate is created or first arises; other are derivative or secondary; whereby the benefit or estate originally created is enlarged, restrained, transferred, or extinguished.
**310]Original conveyances are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.
1. A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi.(x) It is the most antient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.
This is plainly derived from, or is indeed itself the very mode of, the antient feodal donation; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment is “do or dedi.”(y) And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of the feodal grant, “tenor est qui legem dat feudo,” is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationi.”(z) And therefore, as in pure feodal donations, the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate which he meant to confer, “ne quis plus donasse præsumatur quam in donatione expresserit;”(a) so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life.(b) For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee’s estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation *[*311and constitution of the estate, hath given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple,(c) by giving the land to the feoffee, to hold to him and his heirs forever; though it serves equally well to convey any other estate or freehold.(d)
But by the more words of the deed the feoffment is by no means perfected: there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will.(e) This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit:”(f) and an estate was then only perfect, when, as the author of Fleta expresses it in our law, “fit juris et seisinæ conjunctio.”(g)25
Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of bystanders, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such, as claimed title by other means might know against whom to bring their actions.
In all well-governed nations some notoriety of this kind has been ever held requisite, in order to acquire and ascertain *[*212the property of lands. In the Roman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole.(h) And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists,(i) acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by instalment; in rectories and vicarages, by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised.(k) It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem.(l)
Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was per**313]mitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth:(m) “now this was the manner in former time in Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe and gave it to his neighbour; and this was a testimony in Israel.” Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses.(n) With our Saxon ancestors the delivery of a turf was a necessary solemnity to establish the conveyance of lands.(o) And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants.
Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. **314]Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed; yet still, for a very long series of years, they were never made use of, but in company with the more antient and notorious method of transfer by delivery of corporal possession.
Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses; and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and when he enters in pursuance of that right, he is then, and not before, in possession of his term, and complete tenant for years.(p) This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in præsenti, or not at all.(q)26
On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen, that at the common law livery must be made to the particular tenant.(r) But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam quod semei meum est, amplius meum esse non potest;”(s) but it must be made to the remainderman *[*315himself, by consent of the lessee for years; for without his consent no livery of the possession can be given;(t) partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given(u) for introducing the doctrine of attornments.
Livery of seisin is either in deed or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done by deputy or attorney as by the principals themselves in person,)27 come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig, or bough there growing, with words to this effect: “I deliver these to you in the name of seisin of all the lands and tenements contained in this deed.” But if it be of a house, the feoffor must take the ring or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others.(w) If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor’s possession, livery of seisin of any parcel in the name of the rest, sufficeth for all;(x) but if they be in several counties, there must be as many liveries as there are counties. For if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides, antiently this seisin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law,(y)pares debent interesse investituræ feudi, et non alii: for which this reason is expressly given: because *[*316the peers or vassals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though afterwards the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations,)(z) was still reserved to the pares or jury of the county.(a) Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case but by the consent of the particular tenant; and the consent of one will not bind the rest.(b) And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it: together with the names of the witnesses.(c) And thus much for livery in deed.
Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, “I give you yonder land, enter and take possession.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands,(d) will suffice without an entry.(e) This livery in law cannot however be given or received by attorney, but only by the parties themselves.(f)28
2. The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of an estate passing by it: for the operative words of conveyance in this case are do or dedi;(g) and gifts in tail are equally imperfect without livery or seisin, as feoffments in fee-simple.(h) **317]And this is the only distinction that Littleton seems to take, when he says,(i) “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;” viz., feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,
3. Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had.(k) For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, &c., to lie in grant.(l) And the reason is given by Bracton:(m) “traditio, or livery, nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio: sed res incorporales, quæ sunt ipsum jus rei vel corpori inhærens, traditionem non patiuntur.” These therefore pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant, (while attornments were requisite,) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject-matter: for the operative words therein commonly used are dedi et concessi, “have given and granted.”29
4. A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense,) made for life, for years, or at will, but always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “demise, grant, and to farm let; demisi, concessi, et ad firmam *[*318tradidi.” Farm, or feorme, is an old Saxon word signifying provision:(n) and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions; in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is indeed incident and necessary to one species of leases, viz., leases for life of corporeal hereditaments; but to no other.
Whatever restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he hath the whole interest; but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner: nor could a husband, seised jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple, such as parsons and vicars, with consent of the patron and ordinary.(o) So also bishops and deans, and such other sole ecclesiastical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggregate *[*319might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power, where it was unreasonable, and might be made an ill use of, is restrained; and where, in the other cases, the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.
And first, the enabling statute, 32 Hen. VIII. c. 28, empowers three manner of persons to make leases, to endure for three lives or one-and-twenty years, which could not do so before. As first, tenant in tail may, by such leases, bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seised of an estate of fee-simple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding.(p) 1. The lease must be by indenture; and not by deed-poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time.30 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrein.(q) 7. It must be of **320]lands and tenements most commonly letten for twenty years past; so that if they had been let for above half the time (or eleven years out of the twenty) either for life, or for years at will, or by copy of court-roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.
Next follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19, (made entirely for the benefit of the successor,) which enacts, that all grants by archbishops and bishops, (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law,) other than for the term of one-and-twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act.(r)31 But by a saving expressly made, this statute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favourites, whom she thus gratified without any expense to herself. To prevent which(s) for the future, the statute 1 Jac. I. c. 3 extends the prohibition to grants and leases made to the king as well as to any of his subjects.
Next comes the statute 13 Eliz. c. 10, explained and enforced by the statutes 14 Eliz. c. 11 & 14, 18 Eliz. c. 11, and 43 Eliz. c. 29; which extend the restrictions laid by *[*321the last-mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market-towns, may be let for forty years, provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair; and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste.(t) 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 & 18 Eliz. shall be void.
Concerning these restrictive statutes there are two observations to be made; first, that they do not by any construction enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty-one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent.(u)32 Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong.(w)
*[*322There is yet another restriction with regard to college leases, by statute 18 Eliz. c. 6, which directs that one-third of the old rent, then paid, should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s. 8d., or a quarter of malt for every 5s.; or that the lessees should pay for the same according to the price that wheat and malt should be sold for in the market next adjoining to the respective colleges on the market day before the rent becomes due. This is said(x) to have been an invention of lord treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies, (which effects were likely to increase to a greater degree,) devised this method for upholding the revenues of colleges. Their foresight and penetration have in this respect been very apparent: for, though the rent so reserved in corn was at first but one-third of the old rent, or half what was still reserved in money, yet now the proportion is nearly inverted: and the money arising from corn-rents is, communibus annis, almost double to the rents reserved in money.33
The leases of beneficed clergymen are further restrained, in case of their non-residence, by statutes 13 Eliz. c. 20, 14 Eliz. c. 11, 18 Eliz. c. 11, and 43 Eliz. c. 9,34 which direct, that if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year’s profit of his benefice, to be distributed among the poor of the parish, but that all leases made by him of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void:35 except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above **323]forty days in any one year. And thus much for leases, with their several enlargements and restrictions.(y)
5. An exchange is a mutual grant of equal interests, the one in consideration of the other. The word “exchange” is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word, or expressed by any circumlocution.(z) The estates exchanged must be equal in quantity;(a) not of value, for that is immaterial, but of interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery.(b) But no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance:(c) for each party stands in the place of the other, and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety.(d)36 And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own.(e) For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other’s title, he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges.(f)37
6. A partition is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the *[*324lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity of interest and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates which they are to take and enjoy separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seisin.(g) And the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, made no alteration in this point. But the statute of frauds, 29 Car. II. c. 3, hath now abolished this distinction, and made a deed in all cases necessary.38
These are the several species of primary or original conveyances. Those which remain are of the secondary or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As,
7. Releases; which are a discharge or a conveyance of a man’s right in lands or tenements, to another that hath some former estate in possession.39 The words generally used therein are “remised, released, and forever quit-claimed.”(h) And these releases may enure either, 1. By way of enlarging an estate, or enlarger l’estate:40 as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.(i) But in this case the relessee must be in possession41 of some estate, for the release to work upon; for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee.(k)42 2. By way of passing an estate, or mitter l’estate: as when one of two coparceners releaseth all her **325]right to the other, this passeth the fee-simple of the whole.(l)43 And in both these cases there must be a privity of estate between the relessor and relessee;(m) that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right,44 or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right, hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful.(n)45 4. By way of extinguishment: as if my tenant for life makes a lease to A. for life, remainder to B. and his heirs, and I release to A.; this extinguishes my right to the reversion, and shall enure to the advantage of B.’s remainder as well as of A.’s particular estate.(o)46 5. By way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion, which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee.(p) And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.47
8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines it(q) to be a conveyance of an estate or right in esse, whereby a voidable48 estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these: “have given, granted, ratified, approved, and confirmed.”(r) An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term: here the lease for years is voidable by him in reversion: yet, if he *[*326hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable, but sure.(s) The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release which operates by way of enlargement.
9. A surrender, sursumredditio,49 or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate’s descending upon the less, a surrender is the falling of a less estate into a greater. It is defined(t) a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words: “hath surrendered, granted, and yielded up.”50 The surrenderor must be in possession;(u) and the surrenderee must have a higher estate, in which the estate surrendered may merge; therefore tenant for life cannot surrender to him in remainder for years.(w) In a surrender there is no occasion for livery of seisin;(x) for there is a privity of estate between the surrenderor and the surrenderee; the one’s particular estate and the other’s remainder are one and the same estate: and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes: since the reversion of the lessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any further delivery of possession would be vain and nugatory.(y)51
10. An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less **327]than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.52
11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated(z) or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law;(a) and therefore only indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment;) and so also annuities, conditions, warranties, and the like, were always liable to be recalled by defeazances made subsequent to the time of their creation.(b)53
II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses.
Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum than the usus fructus of the civil law: which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.(c) But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he **328]should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the prætor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence.(d) So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request.(e) In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits.(f) As, if a feoffment was made to A. and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A. the terre-tenant had the legal property and possession of the land, but B. the cestuy que use was in conscience and equity to have the profits and disposal of it.
This notion was transplanted into England from the civil law, about the close of the reign of Edward III.,(g) by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to religious houses directly, but to the use of the religious houses:(h) which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was **329]possessed of the use only, such use was devisable by will. But we have seen(i) how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5, with respect to religious houses.
Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, ulternately attainted the other. Wherefore, about the reign of Edw. IV., (before whose time, lord Bacon remarks,(k) there are not six cases to be found relating to the doctrine of uses,) the courts of equity began to reduce them to something of a regular system.
Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI. with respect to the heir;(l) and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.(m) But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king nor queen, on account of their dignity royal,(n) nor any corporation *[*330aggregate, on account of its limited capacity,(o) could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust.54 And, if the feoffee to uses died without heir, or committed a forfeiture or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was as signed, were liable to perform the use:(p) because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir.
On the other hand, the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quæ ipso usu consumuntur:(q) or whereof the seisin could not be instantly given.(r) 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself,(s) unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions.(t)55 But if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration.(u) 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;(w) for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties,(x) or be devised by last will and testament;(y) for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; *[*331and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee;(z) to whom he was accounted by law to be only tenant at sufferance.(a) 5. Uses were not liable to any of the feodal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c. are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use.(b) 6. No wife could be endowed, or husband have his curtesy, of a use:(c) for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint-estate to the use of the husband and wife for their lives; which was the original of modern jointures.(d) 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.(e) For, being merely a creature of equity, the common law, which looked no further than to the person actually seised of the land, could award no process against it.
It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the antient law. These principal outlines will be fully sufficient to show the ground of lord Bacon’s complaint,(f) that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land knew not against whom to **332]bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences, abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use,(g) allowed actions for the freehold to be brought against him if in the actual pernancy or enjoyment of the profits;(h) made him liable to actions of waste;(i) established his conveyances and leases made without the concurrence of his feoffees;(k) and gave the lord the wardship of his heir, with certain other feodal perquisites.(l)
These provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10, which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III.; who, having, when duke of Gloucester, been frequently made a feoffee to uses would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But to obviate sonotorious an injustice, an act of parliament was immediately passed,(m) which ordained, that where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely enfeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the stat. of Henry VIII., after reciting the various inconveniences before mentioned, and many others, enacts, that “when any person shall be seised of lands, &c., to the use, confidence, or trust of any other person or body **333]politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c. of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession; thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.
The statute having thus not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seisin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.
*[*334The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them,(n) or to the use of A. and his heirs till B. shall pay him a sum of money, and then to the use of B. and his heirs.(o) Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declaration of uses, was also adopted in favour of executory devises.(p) But herein these, which are called contingent or springing uses,56 differ from an executory devise; in that there must be a person seised to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever:(q) whereas by an executory devise the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee;(r) because, though that was forbidden by the common law in favour of the lord’s escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held, that a use, though executed, may change from one to another by circumstances ex post facto;(s) as, if A. makes a feoffment **335]to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and upon the birth of a son, the use is executed jointly in them both.(t) This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration, or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail; here, till he marries, the use results back to himself; after marriage, it is executed in the wife for life: and, if she dies without issue, the whole results back to him in fee.(u) It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself, and therefore esteemed a part of it, upon events specially mentioned.(w) And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.(x) And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind; who (as lord Bacon observes)(y) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.
By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished.57 But one or two technical scruples, which the judges found it hard to get over restored it with tenfold increase. They held, in the first place, that “no use could be limited on a use;”(z) and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a further use to another person is repugnant, and therefore **336]void.(a) And therefore on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B. he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down through a hundred uses upon uses, till finally executed in the last cestuy que use.58 Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised but only possessed;(b) and therefore, if a term of one thousand years be limited to A., to the use of (or in trust for) B., the statute does not execute this use, but leaves it as at common law.(c) And lastly, (by more modern resolutions,) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust.(d)59
Of the two more antient distinctions the courts of equity quickly availed themselves. In the first case it was evident that B. was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore that court determined, that though these were not uses which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed.(e) To this the reason of mankind assented, and the doctrine of uses was revived under the denomination of trusts; and thus, by this strict construction of the courts of law, a statute, made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance.(f)
*[*337However, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degeee those mischiefs which made uses intolerable. The statute of frauds, 29 Car. II. c. 3, having required that every declaration, assignment, or grant of any trust in lands or hereditaments (except such as arise from implication or construction of law) shall be made in writing signed by the party, or by his written will: the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity which the other is subject to in law: and by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice;(g) which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds,)60 to forfeiture, to leases, and other encumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents,(h) than from any well-grounded principle.61 It hath also been held not liable to escheat to the lord in consequence of attainder or want of heirs:(i) because the trust could never be intended for his benefit. But let us now return to the statute of uses.
The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one’s stead. But this now has given way to
**338]12. A twelfth species of conveyance, called a covenant to stand seised to uses:62 by which a man, seised of lands, covenants in consideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land,(k) without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate when made upon such weighty and interesting considerations as those of blood or marriage.
13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes, by such a bargain, a trustee for, or seised to the use of, the bargainee: and then the statute of uses completes the purchase;(l) or, as it hath been well expressed,(m) the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety which the common-law assurances were calculated to give; to prevent, therefore, clandestine conveyances of freeholds, it was enacted in the same session of parliament, by statute 27 Hen. VIII. c. 16, that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster hall, or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious, till about six years before:(n) which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to *[*339foresee, and provide against, all the consequences of innovations! This omission has given rise to.
14. A fourteenth species of conveyance, viz., by lease and release; first invented by sergeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I.) have formerly doubted its validity.(o) It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now, this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately invests the possession. He therefore, being thus in possession,63 is capable of receiving a release of the freehold and reversion; which, we have seen before,(p) must be made to a tenant in possession: and, accordingly, the next day a release is granted to him.(q) This is held to supply the place of livery of seisin: and so a conveyance by lease and release is said to amount to a feoffment.(r)64
15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries: of which we shall speak in the next chapter: and
16. Deeds of revocation of uses, hinted at in a former page,(s) and founded in a previous power, reserved at the raising of the uses,(t) to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation.(u) And this may suffice for a specimen of conveyances founded upon the statute of uses: and will finish our observations upon such deeds as serve to transfer real property.65
*[*340Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or encumber, lands, and to discharge them again: of which nature are obligations or bonds, recognizances, and defeazances upon them both.66
1. An obligation, or bond, is a deed(v) whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands.67 How it affects the personal property of the obligor will be more properly considered hereafter.68
If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional; for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards *[*341becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency.(w) On the forfeiture of the bond, or its becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz., his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants and the like. And the like practice having gained some footing in the courts of law,(x) the statute 4 & 5 Anne, c. 16, at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.69
2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized,(y) with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, “that A. B. doth acknowledge to owe to our lord the king, to the plaintiff, to C.D., or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D., &c. is called the recognizee, “is cui cognoscitur;” as he that enters into the recognizance is called the cognizor, “is qui cognoscit.” This, being either certified to or taken by the officer of some court, is witnessed only by the record of that court, and not by the party’s seal: so that it is not in strict propriety a deed, though the effects of it are greater than a **342]common obligation,70 being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrolment on record.(z)71 There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6, which have been already explained,(a) and shown to be a charge upon real property.
3. A defeazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent, deed.(b) This, like the condition of a bond, when performed, discharges and disencumbers the estate of the obligor.
These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any: though in these there is certainly one palpable defect, the want of sufficient notoriety; so that purchasers or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance, (by giving corporal seisin of the lands,) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and encumbrances, since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery;(c) and the failure of the general register established by king Richard the First, for the starrs or mortgages made to *[*343Jews, in the capitula de Judæis, of which Hoveden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record.(d) And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature(e) to erect such register in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.72
[(a) ] Co. Litt. 171.
[(b) ] Pl[Editor: illegible character]d. 434.
[(c) ] Lyndew. l. 1, t. 10, c. 1.
[(d) ] Mirror, c. 2, 27.
[1 ] Now a deed purporting to be an indenture shall have the effect of an indenture, and an immediate estate or interest in any tenements or hereditaments, and the benefit of a covenant or of a condition, may be taken, although the taker thereof be not named a party to the indenture. 8 & 9 Vict. c. 106, s. 5.—Stewart.
[(e) ] Mirror, c. 2, 27. Litt. 371, 372.
[(f) ] Co. Litt. 35.
[(g) ] Stat. 13 Eliz. c. 8.
[(h) ] Stat. 27 Eliz. c. 4.
[(i) ] Stat. 13 Eliz. c. 5.
[(k) ] Perk 533.
[2 ] This sentence is not quite accurately worded. From the expression “deed, or other grant,” it might be inferred that a deed was a species of grant; whereas a grant is only one mode of conveyance by deed. Next, it is not true that all deeds or all grants made without consideration are of no effect; for, 1st. As to all deeds which operate at common law or by transmutation of possession, I imagine that they will be valid at law to pass the estates they profess to pass as against the grantor, though made without any consideration; and, 2d. As to deeds which operate under the statute of uses, they create a use which results to the grantor. To all appearance, indeed, no change is made in the grantor’s title or rights by such a deed; yet that it is without effect in law cannot be said, because it works such an alteration in the grantor’s estate from that which he had before, that any devise of the lands made before the date of the deed will take no effect unless the will be republished,—that is, in fact, new-made.—Coleridge.
[(l) ] 3 Rep. 83.
[3 ] This, I conceive, is only true of a bargain and sale; for “herein it is said to differ from a gift, which may be without any consideration or cause at all; and that [a bargain and sale] hath always some meritorious cause moving it, and cannot be without it.” Shep. Touch. 221. But, otherwise, a voluntary conveyance is good both in law and equity against the party himself. Tr. of Eq. b. 1, c. 5, s. 2. It used to be thought if a person made a voluntary grant of lands, although he could not resume them himself, yet, if he afterwards made another conveyance of them for a valuable consideration, the first grant would be void with regard to this purchaser under the 27 Eliz. c. 4. But it was determined by lord Mansfield and the court that there must be some circumstance of fraud to vacate the first conveyance, the want of consideration alone not being sufficient. See Cowp. 705. But it has since been decided (9 East, 59) that a voluntary settlement of lands, made even in consideration of natural love and affection,—even as a provision for the nearest relations, parents or children,—is void as against a subsequent purchaser for a valuable consideration, although such purchaser had notice of the prior settlement. If a person is indebted at the time of making a voluntary grant, or becomes so soon afterwards, it will be considered fraudulent and void with respect to creditors under the 13 Eliz. c. 5. And if a person makes a voluntary grant, and afterwards becomes bankrupt, whether he was indebted or not at the time, it will be void by the 1 Jac. c. 15, and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93.—Christian.
The better American doctrine seems now to be that voluntary conveyances of land bonâ fide made and not originally fraudulent are valid against subsequent purchasers with notice either actual or constructive. Jackson vs. Town, 4 Cowen, 603. Richer vs. Ham, 14 Mass. 139. Cathcart vs. Robinson, 5 Peters, S. C. Rep. 280. 4 Kent’s Com. 463.
There are some deeds to the validity of which a consideration need not have been stated. It was not required at common law in feoffments, fines, and leases, in consideration of the fealty and homage incident to every such conveyance. The law raised a consideration from the tenure itself and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use; and, when uses were introduced at law, the courts of law adopted the same idea, and held that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the settled law that a consideration expressed or proved was necessary to give effect to a modern conveyance to uses. Lloyd vs. Spillet, 2 Atk. Rep. 148. Jackson vs. Alexander, 3 Johns. 491. Preston on Abst. vol. 3, 13, 14. The consideration need not be expressed in the deed; but it must exist. Fink vs. Green, 5 Barb. S. C. Rep. 455. The mention of the consideration in a deed was to prevent a resulting trust; but it is only prima facie evidence of the amount, and may be varied by parol proof. Meeher vs. Meeher, 16 Conn. 383. 4 Kent Com. 465.—Sharswood.
[4 ] Com. Dig. Fait, A. 3 Chitty’s Com. L. 6. There seems no doubt that it may be printed, and that, if signatures be requisite, the name of a party in print at the foot of the instrument would suffice. 2 M. & S. 288.—Chitty.
[(m) ] Co. Litt. 229. F. N. B. 122.
[5 ] Courts of equity, though the practice has been lamented, have long been in the habit of deciding, upon equitable grounds, in contradiction to this positive enactment. The earliest case of the kind appears to have been that of Foxcraft vs. Lyster, (Colles’s P. C. 108.) By the highest tribunal of the realm it was held to be against conscience to suffer a party who had entered into lands and expended his money on the faith of a parol agreement to be treated as a trespasser, and for the other party, in fraud of his engagement, (although that was only verbal,) to enjoy the advantage of the money so laid out. This determination, though in the teeth of the act of parliament, was clearly founded on sound abstract principles of natural justice, and, confirmed as it has been by an almost daily succession of analogous authorities, is not now to be questioned.
It is settled, also, that trusts of lands arising by implication, or operation of law, are not within the statute of frauds: if they were, it has been said that statute would tend to promote frauds rather than prevent them. Young vs. Peachy, 2 Atk. 256, 257. Willis vs. Willis, 2 Atk. 71. Anonym. 2 Ventr. 361.
The statute of frauds enacts that no agreement respecting lands shall be of force unless it be signed by the party to be charged; but the statute does not say that every agreement so signed shall be enforced. To adopt that construction would be to enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure, whether it should be an agreement or not. Lord Redesdale, indeed, has intimated a doubt whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced which has not been signed by, or on behalf of, both parties. Lawrenson vs. Butler, 1 Sch. & Lef. 20. O’Rourke vs. Percival, 2 Ball. & Beat. 62. Lord Hardwicke and Sir Wm. Grant held a different doctrine. Backhouse vs. Mohun, 3 Swanst. 435. Fowle vs. Freeman, 9 Ves. 354. Western vs. Russell, 3 Ves. & Bea. 192. Lord Eldon, without expressly deciding the point, seems to have leaned to lord Redesdale’s view of the question, (Huddlestone vs. Biscoe, 11 Ves. 592;) and Sir Thomas Plumer wished it to be considered whether, when one party has not bound himself, the other is not at liberty to enter into a new agreement with a third person. Martin vs. Mitchell, 2 Jac. & Walk. 428.—Chitty.
By statute 8 & 9 Vict. c. 106, s. 4, a feoffment made after the 1st of October, 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed; and it is also enacted that a partition and an exchange of any hereditaments not being copyhold, and a lease, required by law to be in writing, of any hereditaments, and an assignment of a chattel interest not being copyhold in any hereditaments, and a surrender in writing of any interest therein not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the 1st day of October, 1845, shall also be void at law, unless made by deed.—Stewart.
[(n) ] Co. Litt. 225.
[6 ] If a deed correctly describe land by its quantities and occupiers, though it describe it as being in a parish in which it is not, the land shall pass by the deed. 5 Taunt. 207. A deed made with blanks, and afterwards filled up and delivered by the agent of the party, is good. 1 Anst. 229. 4 B. & A. 672. And the palpable mistake of a word will not defeat the manifest intent of the parties. Doug. 384.—Chitty.
[7 ] The maxim in pleading in favour of following approved precedents, “nam nihil simul inventum est et perfectum,” may well be applied to conveyancing. Co. Litt. 230, a. Frequently the reason for using particular expressions will appear after many years’ study, when before, upon a cursory consideration, the words seemed unnecessary, if not improper.—Chitty.
[(o) ] Ibid. 6.
[(p) ] See Appendix, N° II. 1, page v.
[(q) ] Ibid.
[(r) ] Co. Litt. 21. 2 Roll. Rep. 19, 23. Cro. Jac. 476.
[(s) ] Rep. 23. 8 Rep. 56.
[(t) ] Appendix, N° I. Madox, Formul. passim.
[(u) ] Ibid. N° II. 1, page iii.
[(w) ] See page 41.
[(x) ] Plowd. 13. 8 Rep. 71.
[(y) ] Appendix, N° I. page i.
[(z) ] Ibid. N° II. 2, page viii.
[(a) ] Ibid. N° I. page i.
[(b) ]Feud. l. 2, t. 8 and 25.
[(c) ] Co. Litt. 384.
[(d) ] Litt. 143.
[(e) ] Co. Litt. 174.
[(f) ] Ibid. 384.
[(g) ] Ibid.
[(h) ] Ibid. 102.
[(i) ] Litt. 733.
[(k) ] Co. Litt. 373.
[(l) ] Litt. 703, 706, 707.
[(m) ] Ibid. 705, 707.
[(n) ] Ibid. 698, 702.
[(o) ] Co. Litt. 102.
[(p) ] Litt. 711, 712.
[(q) ] Co. Litt. 373.
[(r) ] Litt. 712. 2 Inst. 293.
[(s) ] Page 116.
[(t) ] Co. Litt. 374. 2 Inst. 335.
[8 ] But now, by the statute 3 & 4 W. IV. c. 74, all warranties entered into after the 31st December, 1833, by a tenant in tail, shall be void against the issue in tail and remainderman. By the statute 3 & 4 W. IV. c. 27, s. 39, the effect of warranty in tolling a right of entry was taken away; and by the same statute the writ of warrantia chartæ and the writ of voucher, by the help of which the party wishing to obtain the protection of warranty might have defended himself, were also abolished. So that warranties of real estate, which have indeed been long disused, cannot now have any practical operation.—Kerr.
[9 ] As to covenants in general, see Com. Dig. Covenant. The word “covenant” is not essentially necessary to the validity of a covenant, for a proviso to pay is a covenant, and may be so declared upon. Clapham vs. Moyle, Lev. 155. And it may be inferred from the exception in another covenant. 16 East, 352.
A vendor’s covenant that he hath right to convey is usually only against his own acts, and not absolutely that he has a good title. Sometimes, when he takes by descent, he covenants against his own acts and those of his ancestor; and if by devise, it is not usual for him to covenant against the acts of the devisor as well as his own. But the usual words “notwithstanding any act by him done,” &c. are generally to be taken as confining the covenant to acts of his own. 2 Bos. & Pul. 22, 26. Hob. 12. See the constructions on covenants for good title, 2 Saund. 178, a.; b. 181.
Covenants which affect, or are intimately attached to, the thing granted, as to repair, pay rent, &c., are said to run with the land, and bind not only the lessee, but his assignee also, (5 Co. 16, b.,) and enure to the heir and assignee of the lessor, even although not named in the covenant. See 2 Lev. 92. As are also those which the grantor makes that he is seised in fee, has a right to convey, for quiet enjoyment, for further assurance, and the like, which enure not only to the grantee, but also to his assignee, (1 Marsh, 107, S. C. 5 Taunt. 418. 4 M. & S. 188, id. 53,) and to executors, &c. according to the nature of the estate. 2 Lev. 26. Spencer’s case, 5 Co. 17, b. 3 T. R. 13. And these are covenants real, as they either pass a realty or confirm an obligation so connected with realty that he who has the realty is either entitled to the benefit of, or is liable to perform, the obligation. Fitz. N. B. 145. Shep. Touch. c. 7, 161. See, as to right and liability of suing and being sued on these covenants, in case of heirs, assigns, &c., 1 Chitty on Pl. 10, 11, 13, 38, 39, 42.—Chitty.
[(u) ] Appendix, N° II. 2, page viii.
[10 ] The executors and administrators are bound by every covenant without being named, unless it is such a covenant as is to be performed personally by the covenantor, and there has been no breach before his death. Cro. Eliz. 553.—Christian.
This is not a correct description of a covenant real, which is that whereby an obligation to pass something real is created, as lands or tenements, or the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of, or liable to perform, the other. Fitz. N. B. 145. Shep. Touch. c. 7, p. 161. Thus, a warranty is a real covenant, a covenant to levy a fine, &c. The heirs of the covenantor, with assets descended, may be sued for the breach of any covenant, whether real or personal, to the performance of which they are expressly bound. On the other hand, executors and administrators are bound by all covenants of the testator, whether named or not, except the thing which was the object of the covenant related to the realty or was something to be performed personally by the covenantor, the obligation to perform which, of course, ended with his life. Cro. Eliz. 553.—Coleridge.
[(w) ] Appendix, N° II. 2, page xii.
[(x) ] Co. Litt. 46. Dyer, 28.
[11 ] The date of a deed is not essential. Com. Dig. Fait, B. 3. In ancient times the date of the deed was generally omitted; and the reason was this, viz., that the time of prescription frequently changed, and a deed dated before the time of prescription was not pleadable, but a deed without date might be alleged to be made within the time of prescription. Dates began to be added in the reigns of Edward II. and Edward III.—Christian.
Where a deed purported to bear date on the 20th of November, and was executed by one of two defendants on the 16th of that month, and by the other on a previous day, it was held to be immaterial, it not appearing that a blank was left for the date at the time of the execution. 6 Moore, 483. A person may declare in covenant that the deed was indented, made, and concluded on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. 4 East, 477. And where there is no date to a deed, and it directs something to be done within a certain time after its supposed date, the time will be calculated from the delivery. 2 Lord Raym. 1076. And see Bac. Abr. Leases, I. 1. Com. Dig. Fait, B. 3.—Chitty.
[(y) ] 2 Rep. 3, 9. 11 Rep. 27.
[12 ] See in general, Com. Dig. Fait, A. 2. Sealing may be averred in pleading. 1 Saund. 290 n. 1. If A. execute a deed for himself and his partner, by the authority of his partner and in his presence, it has been held a good execution, though only sealed once, (4 T. R. 313. 3 Ves. 578;) though it is an established rule that one partner cannot bind the other partners by deed. 7 T. R. 207. A person executing a deed for his principal should sign in the name of the principal, (6 T. R. 176,) or thus, “for A. B., (the principal,) E. F., his attorney.” 2 East, 142.—Chitty.
[13 ] Signing seems unnecessary, unless in cases under the statute of frauds, and deeds executed under powers. Com. Dig. Fait, B. 1. 17 Ves. Jr. 459.—Chitty.
[(z) ] 1 Kings, c. xxi. Daniel, c. vi. Esther, c. viii.
[(a) ] “And I bought the field of Hananeel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balances. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open.” C. xxxii.
[(b) ] Inst. 2, 10, 2 and 3.
[(c) ] 1 Inst. 7.
[(d) ] “Propria manu pro ignorantia literarum signum sanctæ crucis expressi et subscripsi.” Seld. Jan. Angl. l. 1, 42. And this (according to Procopius) the emperor Justin, in the East, and Theodore, king of the Goths, in Italy, had before authorized by their example, on account of their inability to write.
[(e) ] Lamb. Archeion. 51.
[(f) ] “Normanni chirographorum confectionem, cum crucibus aureis, aliisque signaculis sacris, in Anglia firmari solitam, in cæram impressam mutant, modumque scribendi Anglicum rejiciunt.” Ingulph.
[(g) ] Stat. Exon. 14 Edw. I.
[14 ] As a seal is requisite to a deed, the definition and the character of it are well settled. The common law intended by a seal an impression upon wax or wafer, or some other tenacious substance capable of being impressed. According to lord Coke, a seal is wax with an impression: sigillum est cera impressa, quia cera sine impressione non est sigillum. The common-law definition of a seal, and the use of rings and signets for that purpose and by way of signature and authenticity, is corroborated by the usages and records of all antiquity, sacred and profane. In the Eastern States, sealing, in the common-law sense, is requisite; but in the Southern and Western States, from New Jersey inclusive, the impression upon wax has been disused to such an extent as to induce the courts to allow (but with certain qualifications in some of the States) a flourish with the pen at the end of the name, or a circle of ink, or scroll, to be a valid substitute for a seal. 4 Kent. Com. 452.
In Alabama, an instrument which in the body of it purports to be under seal will be considered a deed, though no seal or scroll be annexed to the signature. Shelton vs. Armor, 13 Ala. 165.—Sharswood.
[(h) ] 3 Lev. 1. Stra. 764.
[15 ] In Ellis vs. Smith, (1 Ves. Jr. 13,) chief-justice Willes said, “I do not think sealing is to be considered as signing; and I declare so now, because, if that question ever comes before me, I shall not think myself precluded from weighing it thoroughly and decreeing that it is not signing, notwithstanding the obiter dicta, which in many cases were nunquam dicta, but barely the words of the reporters.” And see, to the same effect, Smith vs. Evans, 1 Wils. 213.—Chitty.
[16 ] With regard to the delivery of a deed, no particular form or ceremony is necessary: it will be sufficient if a party testifies his intention in any manner, whether by action or word, to deliver or put it into the possession of the other party, as by throwing it down upon the table, with the intent that it may be taken up by the other party, or if a stranger deliver it with the assent of the party to the deed. Phil. Ev. 449. 9 Rep. 137, a. Com. Dig. tit. Evidence, A. 3. Proof that a party signed a deed which bears on the face of it a declaration that the deed was sealed by the party is when the testimony of a subscribing witness cannot be obtained, or when he has no recollection on the subject, evidence to be left to a jury that the party sealed and delivered the deed. 7 Taunt. 251. 2 Marsh. 527; and see 17 Ves. Jr. 439. Peake, R. 146. It is a question of fact for the jury upon the whole evidence whether a bond was delivered as a deed to take effect from the moment of delivery or at some future time. In Murray vs. Earl Stair, Abbott, C. J., told the jury that, “to make the delivery conditional, it was not necessary that any express words should be used at the time: the conclusion was to be drawn from all the circumstances. It obviated all question as to the intention of the party if, at the time of delivery, he expressly declared that he delivered it as an escrow; but that was not essential to make it an escrow.” 2 B. & C. 88. See also 4 B. & A. 440.—Chitty.
[17 ] Proof of the handwriting of the witnesses, or, if that cannot be had, of the grantor of a deed, with the fact that it is in the possession of the grantee or those claiming under him, is prima facie evidence of delivery. Sicara’s Lessee vs. Davis, 6 Peters, 124. Chandler vs. Temple, 4 Cush. 285. Green vs. Yarnall, 6 Missouri, 326. Williams vs. Springs, 7 Iredell, 384. The registry of a deed, at the request of the grantor, for the use of the grantee, and the grantee’s subsequent assent to the same, are equivalent to an actual delivery. Hodge vs. Drew, 12 Pick. 141. Scrugham vs. Wood, 15 Wend. 545. The grantor’s placing a deed on record is only prima facie, not conclusive, evidence of its delivery. Rigler vs. Cloud, 2 Harris, 361. Harrison vs. Phillips Academy, 12 Mass. 456. Barns vs. Hatch, 3 N. Hamp. 304. Gilbert vs. North American Ins. Co., 23 Wend. 43.—Sharswood.
[18 ] In general, a deed will be considered as having been executed on the day on which it bears date, unless the contrary be shown. Colquhoun vs. Atkinson, 6 Munf. 550. Breckenridge vs. Todd, 3 Monroe, 52. Sweetser vs. Lowell, 33 Maine, 446. That the acknowledgment before a magistrate is of a subsequent date does not affect this presumption. Ford vs. Gregory, 10 B. Monroe, 175. Where the date in the body of a deed was exactly one year before the date at the foot, it was held that the latter should be considered as the true date of the execution of the deed. Morrison vs. Caldwell, 5 Monroe, 426.—Sharswood.
[(i) ] Perk. 130.
[(j) ] Co. Litt. 36.
[19 ] But an escrow, when justice requires it, may take effect by relation back to the first delivery, so as to give it the effect of a deed duly delivered from that time. If this were not the case, manifest injustice would frequently happen by the occurrence of events between the first and second delivery. There is no other rule on the subject than the general one by which it may be considered as taking effect from either period so as best to effectuate the purposes of justice. But this fiction can never be made to prevail against the truth and justice of the case. 1 Johns. Ch. Rep. 288. If a feme sole execute a deed and marry before it cease to be an escrow by a second delivery, it is necessary to give the deed effect from the first delivery; otherwise it would be void. So a delivery to a third person for and on behalf of the grantee, or with directions that it is to be delivered by him to the grantee on the happening of a particular event, is valid from the beginning after the event and acceptance have occurred, the third person being in such case considered a trustee for his use. 6 Mod. Rep. 217. 2 Mass. Rep. 452. When a deed for a valuable consideration is executed in the absence of the grantee, if for his benefit, it may take immediate effect, without any agency in a third person to accept it; for his assent will be presumed. 5 S. & R. 320. 9 S. & R. 244. And it is a matter of no importance if the deed be suffered to remain in the possession of the grantor. If both parties be present, and the usual formalities of execution take place, without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the hands of the grantor. 1 Johns. Ch. Rep. 240. 2 Barnewall & Cressw. 671.—Reed.
If a deed be delivered to the grantee, to become absolute on a contingency, such condition is void and the delivery absolute. There cannot be a delivery as an escrow to the grantee himself. Foley vs. Cowgill, 5 Blackf. 18. Graves vs. Tucker, 10 Smedes & Marsh. 9. Lawton vs. Sager, 11 Barbour, S. C. 349. Johnson vs. Branch, 11 Humph. 521. Jordan vs. Pollock, 14 Geo. 145.—Sharswood.
[20 ] It is not essential to the validity of a deed in general that it should be executed in the presence of a witness. Com. Dig. Fait, B. 4. Phil. on Evid. 413 to 421, 4th ed. And where the names of two fictitious persons had been subscribed by way of attestation, the judge permitted the plaintiff, who had received the deed from the defendant in that deceitful shape, to give evidence of the handwriting of the defendant himself; and where the subscribing witness denied any recollection of the execution, proof of his handwriting was deemed sufficient. Peake Rep. 23, 146. 2 Camp. 635.
The distinction between executions of deeds at common law and executions under powers is fully established. It is a well-known rule that all the formalities and circumstances prescribed by a power are to be strictly observed. If a particular number of attesting witnesses is required, there must be that number. If they are to attest in a particular form, that form must be followed; and they must attest every thing that is necessary for the execution of the power. 4 Taunt. 214. 7 Taunt. 361. 17 Ves. 454, S. C. Also, Sugden on Powers. But the 54 Geo. III. c. 168 aids the omission of the memorandum of attestation when, in fact, the deed has been duly attested.—Chitty.
[(k) ]Feud. l. 1, t. 4.
[(l) ] Co. Litt. 7.
[(m) ]Feud. l. 2, t. 32.
[(n) ] Spelm. Gloss. 228. Madox, Formul. N° 21, 322, 660.
[(o) ] Co. Litt. 6.
[(p) ] 2 Inst. 37.
[(q) ] Madox, Formul. N° 515.
[(r) ] Ibid. Dissert. fol. 32.
[(s) ] 2 Inst. 78. See page 378.
[(t) ] 11 Rep. 27.
[21 ] See, in general, Com. Dig. Fait, F. A deed may be considered as an entire transaction, operating as to the different parties from the time of execution by each, but not perfect till the execution by all. Any alteration made in the progress of such a transaction still leaves the deed valid as to the parties previously executing it, provided the alteration has not affected the situation in which they stood. As thus, when A. executed, there were blanks, which were filled up and interlineations made before B. executed, but as the filling up and interlineation did not affect A., the conveyance to C. was valid. 4 B. & A. 675.—Chitty.
It must not be inferred from the text that every alteration not noted at the time of execution avoids a deed. If the alteration was made before execution, it need not be noted; although it is advisable always to have it done. Rockafella vs. Rea, 7 Halst. 180. It is well settled that a material alteration or interlineation fraudulently made by a party after the execution of the deed avoids it. Heffelfinger vs. Shutz, 16 S. & R. 44. Miller vs. Stewart, 4 Wash. C. C. 26. Lewis vs. Payn, 8 Cowen, 71. Pequawket Bridge vs. Mather, 8 N. Hamp. 139. It is not so well settled whether, when a deed appears on its face to be altered, such alteration is presumed prima facie to have been made before or after execution. That it is incumbent on the party producing a writing to explain any apparent alteration in it, is decided in Acker vs. Ledyard, 8 Barb. S. C. 514; while that the presumption shall always be in favour of honesty until the contrary appears, is asserted in Simpson vs. Stackhouse, 9 Barr, 186. Beaman vs. Russell, 20 Vermont, 205. Boothby vs. Stanly, 34 Maine, 115. A memorandum at the foot is valuable in preventing the question from arising. Alterations, however, may be made subsequently to the execution, by the authority or consent of the parties given before or after execution; and such authority or consent may be proved by oral evidence. Kirwin’s case, 8 Cowen, 118. Speake vs. The United States, 9 Cranch, 28. If blank spaces be left to be filled after execution, the consent of the party executing that they shall be afterwards filled is to be implied. Wiley vs. Moon, 17 S. & R. 438. Smith vs. Crooker, 5 Mass. 538. Boardman vs. Gore, 1 Stewart, 517. Bank vs. Curry, 2 Dana, 142. An alteration by a stranger, though material, will not render the instrument inoperative. Nichols vs. Johnson, 10 Conn. 192.
It does not follow that the title of the grantee is destroyed where the estate passed by the deed. Barret vs. Thorndike, 1 Greenl. 73. Herrick vs. Malin, 22 Wend. 388. It is its executory character alone which is affected. No action can be maintained by the fraudulent party upon any of the covenants contained in the deed. Jackson vs. Jacoby, 9 Cowen, 125. Lewis vs. Payn, 8 Cowen, 71. Wallace vs. Harmstead, 3 Harris, 462. Where, however, a deed separately acknowledged by a married woman to pass her estate is fraudulently altered, the title of the grantee is destroyed, because by law the deed is essential to convey her interest.—Sharswood.
[(u) ] 5 Rep. 23.
[22 ] See, in general, Com. Dig. Fait, F. 2. It must be an intentional breaking off or defacing by the party to whom the other is bound; for if the person bound break off or deface the seal, it will not avoid the deed. Touchstone, c. 4, s. 6, 2. And if it appear that the seal has been affixed, and afterwards broken off or defaced by accident, the deed will still be valid. Palm. 403. And the defacing or cancelling a deed will not in any case divest property which has once vested by transmutation of possession. 2 Hen. Bla. 263; and see 4 B. & A. 675.—Coleridge. 1845, shall, by the late act (8 & 9 Vict. c. 106, s. 4) not imply any covenant in law in respect of any hereditaments, except so far as the words “give” or “grant” may by force of any act of parliament imply a covenant. But by the same act an important alteration of the law has now been made. Great inconveniences arose in the conveyance of corporeal hereditaments from the necessity of livery of seisin to perfect a feoffment, and various contrivances were used to evade its necessity. These are no longer needful; for by the statute 8 & 9 Vict. c. 106, s. 2, all corporeal hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. By this useful provision the conveyance or corporeal hereditaments is much simplified.—Stewart.
If several join in a deed, and be separately bound thereby, the breaking off the seal of one with intent to discharge him from future liability will not alter the liability of the others. 1 B. & C. 682.—Chitty.
[23 ] But when an estate has passed by the deed, the merely cancelling it will not suffice, but there must be a reconveyance, or, in case of a lease, a surrender. 6 East, 86. 4 B. & A. 465.—Chitty.
While the cancellation of a deed by the parties will destroy the deed so far as it is executory, and annul whatever covenants, express or implied, may be contained in it, it should be borne in mind, as well-established law, that it will not divest from the grantee and revest in the grantor an estate which has once vested. Chipman vs. Whittemore, 23 Pick. 231. Morgan vs. Elam, 4 Yerger, 375. Schutt vs. Large, 6 Barb. S. C. 373. Raynor vs. Wilson, 6 Hill, 469. Mallery vs. Stodder, 6 Ala. 801. Jordan vs. Pollock, 14 Geo. 145.—Sharswood.
[24 ] The courts of common law are equally competent to nullify the deed in such case, upon the principle that, the mind not assenting, it is not the deed of the party sought to be charged by it; and there is no occasion to resort to a court of equity for relief, when evidence at law can be adduced. 2 T. R. 765.—Chitty.
[(w) ] Toth. numo. 24. 1 Vern. 348.
[(x) ] Co. Litt. 9.
[(y) ] Ibid.
[(z) ] Wright, 21.
[(a) ] Page 108.
[(b) ] Co. Litt. 42.
[(c) ] See Appendix, N° I.
[(d) ] Co. Litt. 9.
[(e) ] Litt. 66.
[(f) ] Wright, 37.
[(g) ]L. 3, c. 14, 5.
[25 ] Lord Mansfield (in Taylor vs. Horde, 1 Burr. 107) said, in conformity with the text above, “Seisin is a technical term, to denote the completion of that investiture by which the tenant is admitted into the tenure, and without which no freehold could be constituted or pass. Disseisin, consequently, means some way of turning the tenant out of his tenure, and usurping his place and feudal relation.” It should be observed, however, that livery of seisin, though the fact be not endorsed on the deed of feoffment, will be presumed where the possession has gone according to the feoffment for a great length of time. Jackson vs. Jackson, Fitz-Gib. 147. Throckmorton vs. Tracey, 1 Plowd. 149. And a court of equity will even supply the admitted defect of livery of seisin, where a feoffment appears to have been made for a good or a valuable consideration. Thompson vs. Attfield, as stated from Reg. Lib. in Mr. Raithby’s note to 1 Vern. 40. Burgh vs. Francis, 1 Eq. Ca. Abr. 320.—Chitty.
[(h) ]Nam apiscimur possessionem corpore et animo; neque per se corpore, neque per se animo. Non autem ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed sufficit quamlibit partem ejus funds introire. Ff. 41, 2, 3. And again: traditionibus dominia rerum, non nudis pactis, transferuniur. Cod. 2, 3, 20.
[(i) ]Decretal, l. 3, t. 4, c. 40.
[(k) ] See pages 209, 227, 228.
[(l) ] Flet. l. 1, c. 2. 2.
[(m) ] Ch. iv., 7.
[(n) ] Stiernhook, de jure Sueon. l. 2, c. 4.
[(o) ] Hickes, Dissert. Epistolar. 85.
[(p) ] Co. Litt. 46.
[(q) ] See page 165.
[26 ] This is still so in conveyances at common law; but it is otherwise in conveyances to uses under the statute. 1 Saund. on Uses and T. 3 ed. 128, 129. 4 Taunt. 20. Willes, 682, 2 Wils. 75.—Chitty.
[(r) ] Page 167.
[(s) ] Co. Litt. 49.
[(t) ] Ibid. 48.
[(u) ] Page 288.
[27 ] But the authority given to an attorney, &c. for this purpose should be by deed; and the authority so given, whether by the feoffor or feoffee, must be completely executed or performed in the lifetime of both the principals; for if either of them die before the livery of seisin is completed, his attorney cannot proceed, because his authority is then at an end. See 2 Roll. Abr. 8 R. pl. 4, 5. Co. Litt. 52, b.—Chitty.
[(w) ] Co. Litt. 48. West. Symb. 251.
[(x) ] Litt. 414.
[(y) ]Feud. l. 2, t. 58.
[(z) ] See page 307.
[(a) ] Gilb. 10, 35.
[(b) ] Dyer. 18.
[(c) ] See Appendix, N° I.
[(d) ] Litt. 421, &c.
[(e) ] Co. Litt. 42.
[(f) ] Ibid. 52.
[28 ] A feoffment has of late been generally resorted to in practice rather for its peculiar powers and effects than as a simple mode of assurance from one person to another. Thus, a feoffment by a particular tenant, until recently, destroyed the contingent remainders depending on the particular estate, and, if made by a tenant in tail in possession, discontinued the estate-tail; and at one time it seemed quite settled that a feoffment might be employed to convey a fee to the feoffee by disseisin, whatever might have been the estate of the feoffor, provided he had possession of the lands enfeoffed. See the authorities referred to in Butl. Co. Litt. 330, b., n. (l.) 2 Saund. Us. and Tr. 15. 2 Prest. Abst. 293. But this doctrine has for some time been greatly shaken; and it has been considered that a feoffment had no longer this effect, (Doe d. Maddock vs. Lynes, 3 B. & C. 388. Doe d. Dormer vs. Moody, 2 Prest. Conv. Pref. 32. Doe vs. Hall, 2 Dowl. & Ry. 38. 1 Saund. Us. 40. Jerritt vs. Weare, 3 Pri. 575; and see Reynolds vs. Jones, 2 Sim. & Stu. 106;) and by stat. 8 and 9 Vict. c. 106, 4, a feoffment made after the 1st of October, 1845, shall not have any tortious operation, and is now to be ranked among what are called innocent conveyances.—Stewart.
[(g) ] West Symbol 256.
[(h) ] Litt. 59.
[(i) ] 57.
[(k) ] Co. Litt. 9.
[(l) ] Ibid. 172.
[(m) ]L. 2, c. 18.
[29 ] Which words, it is to be observed, in any deed executed after the 1st of October
[(n) ] Spelm. Gloss. 229.
[(o) ] Co. Litt. 44.
[(p) ] Co. Litt. 44.
[30 ] By various acts of parliament, and also frequently by private settlements, a power is granted of making leases in possession, but not in reversion, for a certain term; the object being that the estate may not be encumbered by the act of the party beyond a specific time. Yet persons who had this limited power of making leases in possession only had frequently demised the premises to hold from the day of the date; and the courts in several instances had determined that the words from the day of the date excluded the day of making the deed, and that of consequence these were leases in reversion, and void. See Cro. Jac. 258. 1 Buls. 177. 1 Roll. Rep. 387. 3 Buls. 204. Co. Litt. 46, b. But this question having been brought again before lord Mansfield and the court of King’s Bench, it was established that from the day might either be inclusive or exclusive of the day, and therefore that it ought to be construed so as to effectuate these important deeds, and not to destroy them. Pugh vs. Duke of Leeds, Cowp. 714. Freeman vs. West, 2 Wils. 165.—Christian.
[(q) ] But now, by the statute 5 Geo. III. c. 17, a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop or any such ecclesiastical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt, which (in case of a free hold lease) he could not have brought at the common law.
[(r) ] Co. Litt. 45.
[31 ] The law of concurrent leases is somewhat involved, from the conflicting operation of the ancient common law with the several statutes passed on the subject, but the practical results are as follows:—
If a bishop had made a lease for twenty-one years, under the 32 Henry VIII., he may make a fresh lease for twenty-one years from the making thereof, at any time exceeding a year before the expiration of the first, which will be valid upon being confirmed by the dean and chapter. For it is of no consequence to the successor how long the old lease has to run at the period of making the new one, as the term of the latter commences from its date, and both are thus running out at the same time; and if the first expire the next year, the second will expire twenty years after, as there is not at any period an interest of more than twenty-one years in lease. But there cannot be two leases in the same way running for lives at the same time, nor one lease for lives and another for years: they must be both of the latter description, or they cannot coexist or concur in conferring an interest upon the lessee. If the second lease be granted to any other than the lessee in the first, the lessor may lose his remedy by distress for the recovery of his rent during the continuance of the old lease, because the old lessee may pay his rent to the new lessee, who is become the reversioner, and against whom the lessor can only proceed by action of debt or covenant. See Bac. Abr. tit. “Leases and Terms for Years.” E. Rule 3.—Chitty.
[(s) ] 11 Rep. 71.
[(t) ] Co. Litt. 45.
[(u) ] Co. Litt. 44.
[32 ] If the lease has not been confirmed by the ordinary, the acceptance of rent by the successor will not ratify the rest of the term which may be unexpired at the time of the death or cession of the lessor. Bro. Abr. Acceptance, pl. 26. And a lease of lands which have never before been in lease, though confirmed by the patron and ordinary, and in every other respect duly executed, is not binding upon the successor. 1 Bingh. Rep. 24.—Chitty.
[(w) ] Ibid. 45.
[(x) ] Strype’s Annals of Eliz.
[33 ] The colleges receiving a quarter of wheat, or its value, for every 13s. 4d. which they are paid in money, the corn-rent, from the present price of wheat, will be in proportion to the money-rent as four to one. But both these rents united are very far from the present value. Colleges, therefore, in order to obtain the full value of the term, take a fine upon the renewal of their leases.—Christian.
[34 ] These statutes were repealed by the 43 Geo. III. c. 84, and further amendments were made by the temporary statutes 54 Geo. III. c. 54 and 175. But the residence of spiritual persons is now regulated by the 57 Geo. III. c. 99, which repealed all former acts on this subject. By the 32d section of the statute, all contracts or agreements for letting houses of residence, or the buildings, gardens, orchards, and appurtenances, necessary for the convenient occupation of the same, belonging to any benefice, and in which spiritual persons are by the order of the bishop to reside, are void; and persons holding possession thereof after the day such spiritual persons are directed to reside, upon notice to that effect, forfeit 40s. for every day they so hold over.—Chitty.
[35 ] But by the 57 Geo. III. c. 99, all these statutes which vacate leases by non-residence are repealed.—Chitty.
[(y) ] For the other learning relating to leases, which is very curious and diffusive, I must refer the student to 3 Bac. Abr. 295, (title leases and terms for years,) where the subject is treated in a perspicuous and masterly manner, being supposed to be extracted from a manuscript of Sir Geoffrey Gilbert.
[(z) ] Co. Litt. 50, 51.
[(a) ] Litt. 64, 65.
[(b) ] Co. Litt. 51.
[(c) ] Litt. 62.
[(d) ] Co. Litt. 50.
[36 ] On this account an exchange by lease and release is to be preferred; for in that case the statute executes the possession instantly upon execution of the deeds. Butler’s note to Co. Litt. 271, b., n. 1.—Archbold.
[(e) ] Perk. 238.
[(f) ] Page 300.
[37 ] But although this warranty and right of re-entry are incident to an exchange at common law it has been considered doubtful by some whether they are incident to an exchange effected by mutual conveyances under the statute of uses. Mr. Cruise appears to think that they are so incident. But where mutual conveyances are used, the one in consideration of the other, the incidents of an exchange may be avoided and the objects retained, but in such cases the word “exchange” need not, and should not, be used. By 8 & 9 Vict. c. 106, s. 3, however, an exchange to be binding et law must be by deed; and, by s. 4, an exchange of any hereditaments made by deed executed after the 1st of October, 1845, shall not imply any condition in law.—Stewart.
The general enclosure act, 8 & 9 Vict. c. 118, contains a provision by which the enclosure commissioners are enabled to effect exchanges of lands. On the application in writing of the persons interested in the lands proposed to be exchanged, the commissioners may direct inquiries whether the proposed exchange would be beneficial to the owners; and if they come to be of that opinion, they may frame an order of exchange, with a map or plan of the lands to be both given and taken in exchange; and such order is not to be impeached by reason of any infirmity of estate of the persons on whose application it shall be made. The chief advantage attending this method of exchange is, that the land on each side taken in exchange remains and enures to the same uses, trusts, intents, and purposes, and is subject to the same changes, as the land given in exchange. Thus, each owner holds the newly-acquired lands upon precisely the same title as he held what he had before, and none of the inconvenient consequences of the old common-law title by exchange can arise. Persons having but limited interests in the land may, by the help of the statute I have mentioned, effect exchanges which may be a great benefit to the estate, and which it would have been impossible for them to bring about in any other way.—Kerr.
[(g) ] Litt. 250. Co. Litt. 169.
[38 ] Now, by statute 8 & 9 Vict. c. 106, a deed is in all cases necessary. Partition may be effected in the same way as exchanges under the authority of the enclosure commissioners.—Kerr.
[39 ] Actual possession is not necessary if the estate of the party who is to take the release be itself preceded by an estate in possession: thus, if A. be tenant for life, with remainder to B. for life, with remainder to C. in fee, C. may release to B., whose estate, though vested, is not in possession.—Sweet.
[(h) ] Litt. 445.
[40 ] But this must be the immediate remainder, or reversion; for if A. have a term for years, remainder to B. for years, remainder or reversion in fee to C., C. cannot release to A. for want of privity, on account of the intermediate term in B. Co. Litt. 273, b.—Archbold.
[(i) ] Ibid. 465.
[41 ] A virtual possession will suffice, if the relessee has an estate actually vested in him, at the time of the release, which would be capable of enlargement by such release if he had the actual possession. Thus, if a tenant for twenty years make a lease to another for five years, who enters, a release to the first lessee is good, for the possession of his lessee was his possession. So, if a man makes a lease for years, remainder for years, and the first lessee enters, a release to the person in remainder for years is good to enlarge his estate. Mr. Hargrave’s note 3 to Co. Litt. 270, a.—Chitty.
[(k) ] Litt. 465.
[42 ] This is not accurately expressed. It is necessary that the relessee should have a vested estate, but it is not necessary that such estate should be in possession; as if there be tenant for life, remainder to B. for life, remainder to C. in fee, B. may take a release from C., although his own estate is in remainder. An estate at will is sufficient to found a release upon, (Litt. s. 460,) although the reversion upon such estate does not lie in grant.—Sweet.
[(l) ] Co. Litt. 273.
[43 ] If one joint-tenant assign to the other, it operates as a release, and must be so pleaded. 2 Cruise, 527.—Chitty.
[(m) ] Ibid. 272, 273.
[44 ] There must be a privity of estate between the relessor and the relessee in the first species of release mentioned, (see ante;) but in this release per mitter le droit there is not, indeed there cannot be, any such privity, (Co. Litt. 274, a., n. 1;) nor is there any occasion for words of inheritance. Litt. 470, and Co. Litt. 273, b.—Archbold.
[(n) ] Litt. 466.
[45 ] No privity is necessary when a release of a right is made to one who hath an estate of freehold, in deed or in law; but a release cannot enure by way of passing a right, unless it is made to one having a fee-simple; for the person to whom a right is passed must have the whole right: to a person not having the fee, therefore, a release of right operates as it were, by extinguishment in respect of him that made the release, which extinguishment shall enure to him in remainder, though the right is not extinct in deed. 1 Inst. 275, a., 279, b. If a release of all actions be made to a tenant for life, the person in remainder, after the death of the tenant for life, shall have no benefit from this release. 1 Inst. 275, b., 285, b. Edward Altham’s case, 8 Rep. 302. Lampet’s case, 10 Rep. 51.—Chitty.
[(o) ] Ibid. 470.
[46 ] Blackstone has here unaccountably stated from Littleton a case which has nothing to do with extinguishment. The lease for life to A., with remainder to B. and his heirs, is understood to be by feoffment, and so a discontinuance of the original reversion; and, the reversioner’s estate being thus put to a right, his release passes it for the benefit of the wrongful lessee for life and remainderman, as in any other case of disseisin. Dormit aliquando jus, moritur nunquam. For of such high estimation is right in the eye of the law, that the law preserveth it from death and destruction: trodden down it may be, but never trodden out. Co. Litt. 279, a. And this consideration explains the distinction between a release by extinguishment and a release that passes a right. Under the latter, the relessee has the same right which his relessor had, and that only; by the former, the relessor puts an end, as against all the world, to some hereditament different from that which the relessee has, and which cannot exist with it in the same person. “Releases,” says Littleton, “which enure by way of extinguishment against all persons, are where he to whom the release is made cannot have that which to him is released: as, if there be lord and tenant, and the lord release to the tenant all the right which he hath in the seigniory, or all the right which he hath in the land, &c., this release goeth by way of extinguishment against all persons, because that the tenant cannot have service to receive of himself. In the same manner it is of a release made to the tenant of the land of a rent-charge, or common of pasture, &c., because the tenant cannot have that which to him is released, &c.: so such releases shall enure by way of extinguishment in all ways.” Sects. 479, 480.
There is this distinction between an extinguishment and the passing of a right: a right cannot be passed by release to one who has merely a right: it must be to him who has the estate; and yet privity is no element in such a release, but the contrary. On the other hand, a release by way of extinguishment may be made to one who has privity but no estate. Thus, a lord may release his seigniorial rights to his tenant after he has been disseised; but a rent-charge, as distinguished from a rent-service, can only be released to the actual tenant, because the charge is only on the land and implies no personal privity Co. Litt. 268, a.—Sweet.
[(p) ] Co. Litt. 278.
[47 ] Mr. Ritso objects strongly to this explanation of releases; first, because it does not point out the proper distinction between a release per mitter le droit and a release per extinguisher le droit,—viz., that in the former case the release can, but in the latter that it cannot, hold out every other. For example, a release per mitter le droit is where the releasee can hold out every other. The release of the disseisee to the disseisor is of this description; and so it is if A. disseised by B. and C. releases to B.; for B. shall now hold out C. in the same manner as if A. had regularly entered upon B. anc C., as he might have lawfully done, and then made a separate feoffment to B. But if A. is disseised by B., who enfeoffs C. and D., and afterwards A. releases to one of them, this is a release per extinguisher le droit of A. for the benefit of the two feoffees equally; for the one to whom the release is made cannot hold out the other. Upon the same principle, if the disseisee releases to the lessee of the disseisor, this also is a release per extinguisher le droit of the disseisee, and of which the reversioner as well as the lessee shall have advantage; for they have both of them but one estate in law, and therefore the confirmation of the particular estate is equally the confirmation of the reversion. And so it is if a patron is usurped upon by two and afterwards releases to one of them: it operates, by way of extinguishment, for the benefit of both equally, because the admission and institution are quasi a legal adjudication of the title. Secondly, because the releases which are here described per mitter le droit, and by way of entry and feoffment, are not exactly different species of releases, but only one and the same species, differing no otherwise than in circumstance; for every release which operates by way of entry and feoffment is in fact a release per mitter le droit; and if the disseisee releases, whether to one disseisor alone, or to one of two disseisors, it operates equally in both cases, per mitter and vester le droit of the disseisce, and by way of entry and feoffment; that is to say, the releasee has the same title in both cases as if the disseisee had actually revested his former estate by his entry, and afterwards made a feoffment with livery of seisin to the releasee, and he shall now hold out every other. And, thirdly, because there is another distinct species of release of which no notice whatever is here taken,—namely, a release per extinguisher le estate; as from the grantee of a rent-charge to the owner of the land, or a release of the services from the lord to the tenant, or a release of common of pasture, &c. Co. Litt. 280, a., 307, b. If the lord sells the freehold of the inheritance of the copyhold to another, and afterwards the copyholder releases to the purchaser, this also is a release per extinguisher le estate, and the copyhold interest becomes extinct. 1 Leon. 102, Wakeford’s case. Ritso’s Introd. p. 39.—Sharswood.
[(q) ] 1 Inst. 295.
[48 ] The distinction between voidable and void must not be lost sight of here, for it has no operation whatever upon a void estate. Gilb. Ten. 75.—Chitty.
[(r) ] Litt. 515, 531.
[(s) ] Ibid. 516.
[49 ] See, in general, Com. Dig. Surrender. 1 Saund. index, Surrender. When a tenant for life and the remainderman in fee join in making a lease, it should not be pleaded as the lease of both in its inception; for, living the tenant for life, it is only his lease and the confirmation of the remainderman’s. 6 Co. 14, b., 15, a. Cases and Opinions, 2 vol. ii. 148, edit. 1791.—Chitty.
[(t) ] Co. Litt. 387.
[50 ] But these words are not essential to a surrender. See Wils. 127. Cro. Jac. 169.—Chitty.
[(u) ] Ibid. 338.
[(w) ] Perk. 589.
[(x) ] Co. Litt. 50.
[(y) ] Litt. 460.
[51 ] This is a surrender by deed; but there is also what is termed a surrender in law; as if a person who has a term for years, or an estate for life, accept a new lease incompatible with the interest granted by the former lease, this is a surrender in law, being a virtual surrender of the former term. 5 Co. 11. 2 Prest. Conv. 138.—Archbold.
And an agreement between the lessor and the assignee of the term, whereby the former agreed to pay an annual sum over and above the rent towards the premium paid by the assignee to the lessee, operates as a surrender of the whole term. 1 T. R. 441. See also 6 East, 86. 12 East, 134. 2 B. & A. 119.—Chitty.
There may also be an indirect surrender, or surrender in law, as it is called, by the acceptance by the tenant of a new estate inconsistent with his prior estate. Thus, a new lease made to a person in possession under an old lease, and accepted by him, operates as a surrender in law of the old one; for from such acceptance the law implies his intention to yield up the estate which he had before, though he may not by express words of surrender have declared as much. Shep. Touchst. 300. Joe’s case, 5 Rep. 116. And where a tenant from year to year underlet the premises to another, and the original landlord, with the assent of the original tenant, accepted the under-lessee as his tenant, a surrender in law was held to have taken place of the first tenant’s interest. Thomas vs. Cook, 2 B. & A. 119. Surrenders thus implied by law are not touched by the recent statute 8 & 9 Vict. c. 106, which, we may remember, enacts that any surrender in writing of an interest in lands, not being a copyhold interest and not being an interest which might have been created without writing, shall be void in law unless made by deed.—Kerr.
[52 ] This is far from being universally true; for there is a variety of distinctions when the assignee is bound by the covenants of the assignor, and when he is not. The general rule is that he is bound by all covenants which run with the land, but not by collateral covenants which do not run with the land. As if a lessee covenants, for himself, executors, and administrators, concerning a thing not in existence, as to build a wall upon the premises, the assignee will not be bound; but the assignee will be bound if the lessee has covenanted for himself and assigns. Where the lessee covenants, for himself, his executors, and administrators, to reside upon the premises, this covenant binds his assignee, for it runs with, or is appurtenant to, the thing demised. 2 Hen. Bl. 133. The assignee in no case is bound by the covenant of the lessee to build a house for the lesson anywhere off the premises, or to pay money to a stranger. 5 Co. 16. The assignee is not bound by a covenant broken before assignment. 3 Burr. 1271. See Com. Dig. Covenant. But if an under-lease is made even for a day less than the whole term, the under-lessee is not liable for rent or covenants to the original lessor, like an assignee of the whole term. Doug. 183, 56. An assignee is liable for rent only whilst he continues in possession under the assignment; and he is held not to be guilty of a fraud if he assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. 1 B. & P. 21.—Christian.
The same principle prevails in equity. See 2 Bridg. Eq. Dig. 138. 1 Vern. 87. 2 Vern. 103. 8 Ves. 95. 1 Sch. & Lefroy, 310. But the assignee’s liability commences upon acceptance of the lease, though he never enter. 1 B. & P. 238.—Chitty.
By 8 & 9 Vict. c. 106, 3, any assignment made after the 1st of October, 1845, of a chattel interest in any hereditament not being copyhold shall be void at law unless made by deed.—Stewart.
[(z) ] From the French verb defaire, infectum reddere.
[(a) ] Co. Litt. 236.
[(b) ] Ibid. 237.
[53 ] According to this mode of reasoning (says Mr. Ritso) there should be no after-made defeasance allowed of a recognizance, or of a judgment, or of any other executory conveyance of record, which are all equally solemn with a feoffment. Lord Coke expressly tells us that there can be no after-made defeasance of a feoffment, because it is an executed conveyance, in contradistinction to those which are executory. Co. Litt. 204, a. In the case of a feoffment, the estate in the land is finally vested or executed in the feoffee, by the act of livery of seisin, at the instant it is made; and consequently the feoffor can no otherwise have the land again than by a reconveyance de novo. Quod semel factum est, non potest infectum reddi. But otherwise it is in the case of statutes, recognizances, obligations, judgments, and the like; for these are but executory; that is to say, they remain to be completed by a further act still to be done,—viz., the process of execution; and, consequently, till that is had, they may of course be defeated or discharged at any time. And so it is of all other matters which are in their nature executory, such as rents, annuities, conditions, warranties, &c. Co. Litt. 204, a. Ritso, Introd. 50.
The student ought not to infer that such a defeasance, if in pursuance of the intention of the parties when the conveyance is made or otherwise founded upon sufficient consideration, may not be available, and give the grantor a right, on compliance with the terms and conditions agreed upon, to go into a court of equity and compel the grantee to reconvey the estate. Until such reconveyance, however, the estate does not revest at law: the grantor has only what is termed an equitable estate. Indeed, without any written defeasance at all, when an absolute deed is shown to have been originally made to the grantee only as a security for loan of money, or, in other words, was really a mortgage, a court of equity will so consider it, and allow the grantor to redeem and have a reconveyance of the estate, on the ground that the written defeasance has been omitted by fraud, caprice, or mistake. 4 Kent’s Com. 142.—Sharswood.
[(c) ]Ff. 7, 1, 1.
[(d) ] Inst. 2, tit. 23.
[(e) ]Ff. 43, 26, 1. Bacon on Uses, 8vo, 306.
[(f) ] Plowd. 352.
[(g) ] Stat. 50 Edw. III. c. 6. 1 Ric. II. c. 9. 1 Rep. 139.
[(h) ] See page 271.
[(i) ] Page 272.
[(k) ] On Uses, 313.
[(l) ] Keilw. 42. Year-book, 22 Edw. IV. 6.
[(m) ] Ibid. 46. Bacon on Uses, 312.
[(n) ] Bro. Abr. tit. Feoffm. al uses, 31. Bacon of Uses, 346, 347.
[(o) ] Bro. Abr. tit. Feoffm. al uses, 40. Bacon, 347.
[54 ] In fact, there was not, nor is there, any method of compelling the king to execute the trust; for no court has jurisdiction over him, (see 1 vol. 242;) and, for this reason, although the use has been transferred into possession by the statute of uses, yet the king shall even now hold the estate discharged of the use; because the statute transfers the use into possession only in cases where the trust could have been enforced in equity before the statute. And not only the king, but the alienee of the crown also, hold the estate thus discharged of the use. Ante, vol. 1, p. 242.—Archbold.
[(p) ] 1 Rep. 122.
[(q) ] 1 Jon. 127.
[(r) ] Cro. Eliz. 401.
[(s) ] See page 296.
[(t) ] 1 And. 37.
[55 ] In the second section of the 3d chapter of Gilbert on Uses, p. 222, the law is in substance thus laid down. If a feoffment be made, or a fine be levied, or recovery be suffered, without consideration, and no uses be expressed, the use results to the feoffor and his heirs. But if any uses be expressed, it shall be to those uses, though no consideration be had; and herein is the difference between raising uses by fine, feoffment, or other conveyance operating by transmutation of possession and uses raised by covenant; for, upon the first, if no uses were expressed, it is equity that assigns the feoffor to have the resulting use; by the law, the feoffor has parted with all his interest, (see Cave vs. Holford, 3 Ves. 667;) but where he expresses uses there can be no equity in giving him the use against his own will. On the other hand, in case of a covenant there can be no use without a consideration; for the covenantee in such case can have no right by law, and there is no reason why equity should give him the use, (and see Calthrop’s case, Moor, 101. Stephen’s case, 1 Leon, 138. Jenkins’s Cent. 6, case 36. Mildmay’s case, 1 Rep. 176. 2 Roll’s Abr. 790.)—Chitty.
[(u) ] Moor. 684.
[(w) ] 2 Roll. Abr. 780.
[(x) ] Bacon of Uses, 312.
[(y) ] Ibid. 308.
[(z) ] Stat. 1 Ric. III. c. 1.
[(a) ] Bro. Abr. ibid. 23.
[(b) ] Jenk. 190.
[(c) ] 4 Rep. 1. 2 And. 75.
[(d) ] See page 137.
[(e) ] Brc. Abr. tit. executions, 90.
[(f) ] Use of the law, 153.
[(g) ] Stat. 50 Edw. III. c. 6. 2 Ric. II. sees. 2, c. 3. 19 Hen. VII. c. 15.
[(h) ] Stat. 1 Ric. II. c. 9. 4 Hen. IV. c. 7, c. 15. 11 Hen. VI. c. 3. 1 Hen. VII. c. 1.
[(i) ] Stat. 11 Hen. VI. c. 5.
[(k) ] Stat. 1 Ric. III. c. 1.
[(l) ] Stat. 4 Hen. VII. c. 17. 19 Hen. VII. c. 15.
[(m) ] 1 Ric. III. c. 5.
[(n) ] 2 Roll. Abr. 791. Cro. Eliz. 403.
[(o) ] Bro. Abr. tit. Feoffm. al uses, 30.
[(p) ] See page 173.
[56 ] Mr. Sugden devotes a learned and instructive note, of considerable length, (annexed to the second chapter of his edition of Gilbert on Uses,) to an elucidation of this subject. The reader will do well to peruse the whole, and not rest satisfied with the following extracts. Mr. Sugden says, shifting, secondary, and springing uses are frequently confounded with each other and with future or contingent uses. They may, perhaps, be thus classed. 1st. Shifting or secondary uses, which take effect in derogation of some other estate, and are either limited expressly by the deed, or are authorized to be created by some person named in the deed. 2dly, Springing uses, confining this class to uses limited to arise on a future event where no preceding use is limited, and which do not take effect in derogation of any other interest than that which results to the grantor, or remains in him, in the mean time. 3dly, Future or contingent uses are properly uses to take effect as remainders: for instance, a use to the first unborn son of A., after a previous limitation to him for life or for years, determinable on his life, is a future or contingent use, but yet does not answer the notion of either a shifting or a springing use. Contingent uses naturally arose after the statute of 27 Hen. VIII. in imitation of contingent remainders.
The first class—that is, shifting or secondary uses—are at this day so common that they pass without observation. In every marriage settlement, the first use is to the owner in fee until marriage, and after the marriage to other uses. Here the owner in the first instance takes the fee, which upon the marriage ceases, and the new use arises. But a shifting use cannot be limited on a shifting use; and shifting uses must be confined within such limits as are not to tend to a perpetuity. See ante, chap. 11. But a shifting use may be created after an estate-tail to take effect at any period, however remote; because the tenant in tail for the time-being may, by a recovery, defeat the shifting use.
As to the second class, or springing uses, before the statute of Hen. VIII. there was no mischief in an independent original springing use to commence at a distant period, because the legal estate remained in the trustee. After the statute, too, the use was held to result to, or remain in, the person creating the future use, according to the mode of conveyance adopted, till the springing use arose. This resulting use the statute executed, so that the estate remained in the settler till the period when the use was to rise, which might be at any time within the limits allowed by law in case of an executory devise. When springing uses are raised by conveyances not operating by transmutation of possession, as such conveyances have only an equitable effect until the statute and use meet, a springing use may be limited by them at once; but where the conveyance is one which does operate by transmutation of possession, (as a feoffment, fine, recovery, or lease and release,) two objects must be attended to: first, to convey the estate according to the rules of common law; secondly, to raise the use out of the seisin created by the conveyance. Now, the common law does not admit of a freehold being limited to commence in futuro. See ante, p. 143.
As to the third class, or future or contingent uses, where an estate is limited previously to a future use, and the future use is limited by way of remainder, it will be subject to the rules of common law, and, if the previous estate is not sufficient to support it, will be void. See ante, p. 168.
Future uses have been countenanced, and springing uses restrained, by what is now a firm rule of law,—namely, that if such a construction can be put upon a limitation in use as that it may take effect by way of remainder, it shall never take effect as a springing use. Southcot vs. Stowel, 1 Mod. 226, 237. 2 Mod. 207. Goodtitle vs. Billington, Doug. 758.—Chitty.
[(q) ] 1 Rep. 134, 138. Cro. Eliz. 439.
[(r) ] Pollexf 78. 10 Mod. 423.
[(s) ] Bro. Abr. tit. Feoffm. al uses, 30.
[(t) ] Bacon of Uses, 351.
[(u) ] Ibid. 350. 1 Rep. 120.
[(w) ] See page 327.
[(x) ] Co. Litt. 237.
[(y) ] On Uses, 316.
[57 ] With respect to what shall be said to be a use executed by the statute of 37 Hen. VIII. c. 10, or a trust-estate now not executed, it is held that where a use is limited upon a use, it is not executed, but the legal estate is vested in him to whom the first use is limited. Dy. 155. As where an estate is conveyed to another in these words, “To W. and his heirs, to the use of him and his heirs, in trust for, or to the use of, R. and his heirs,” the use is not executed in R., but in W., and the legal estate is vested in him as trustee. Cas. T. Talb. 164. Ibid. 138, 139. 2 P. Wms. 146. So, where E. made a settlement to the use of himself and his heirs until his then intended marriage, and afterwards to the use of his wife for life, and after her death to the use of trustees and their heirs during the life of E., upon trust to permit him to take the profits, remainder to the first and other sons of the marriage, &c., remainder to the use of the heirs of the body of E.; it was adjudged that E. took only a trust-estate for life, for the use to him could not execute upon the use which was limited to the trustees for his life, and consequently the legal estate for his life was executed in them by the statute of uses, and the limitation to the heirs of the body of E. operated as words of purchase, and created a contingent remainder. Carth. 272, S. C. Comber, 312, 313. 1 Lord Raym. 33. 4 Mod. 380. See also 7 T. R. 342. Ibid. 483, S. C. Ibid. 433. 12 Ves. 89.
So, where something is to be done by the trustees which makes it necessary for them to have the legal estate, such as payment of the rents and profits to another’s separate use, or of the debts of the testator, or to pay rates and taxes and keep the premises in repair, or the like, the legal estate is vested in them, and the grantee or devisee has only a trust-estate. 3 Bos. & Pul. 178, 179. 2 T. R. 444. 6 T. R. 213. 8 East, 248. 12 East, 455. 4 Taunt. 772. As where lands were devised to trustees and their heirs in trust for A., a married woman and her heirs, and that the trustees should from time to time pay the rents and profits to A., or to such person as she by any writing under her hand, as well during coverture as being sole, should appoint without the intermeddling of her husband, who he willed should have no benefit or disposal thereof; and as to the inheritance of the premises in trust for such person and for such estates as A. by her will, or other writing under her hand, should appoint, and, for want of such appointment, in trust for her and her heirs; the question was, whether this was a use executed by the statute, or a bare trust for the wife; and the court held it to be a trust only, and not a use executed by the statute. 1 Vern. 415. And again, in a late case where a devise was to trustees and their heirs upon trust, to permit a married woman to receive the rents and profits during her life for her own sole and separate use, notwithstanding her coverture, and without being in any wise subject to the debts or control of her then or after-taken husband, and her receipt alone to be a sufficient discharge, with remainder over, it was held that the legal estate was vested in the trustees; for, it being the intention of the testator to secure to the wife a separate allowance free from the control of her husband, it was essentially necessary that the trustees should take the estate with the use executed, in order to effectuate that intention; otherwise the husband should be entitled to receive the profits and defeat the very object which the testator had in view. 7 Term Rep. 652. See also 5 East, 162. 9 East, 1. So, where lands were devised to trustees and their heirs in trust, to pay out of the rents and profits several legacies and annuities, and to pay all the residue of the rents and profits to C., a married woman, during her life, for her separate use or as she should direct, and after her death the trustees to stand seised to the use of the heirs of her body, with remainders over, it was held by lord King that the use was executed in the trustees during the life of C., who had only a trust-estate in the surplus of the rents and profits for life, with a contingent remainder to the heirs of her body, and that her eldest son would take as a purchasor; for, by the subsequent words, viz., “that the trustees should stand seised to the use of the heirs of the body of C.,” the use was executed in the persons entitled to take by virtue thereof; and therefore, there being only a trust-estate in C., and a use executed in the heirs of her body, these different interests could not unite and incorporate together so as to create an estate-tail by operation of law in C. And he took a difference between the principal case and that of Broughton vs. Langley, (1 Lutw. 814. 2 Ld. Raym. 873;) for there it was to permit A. to receive the rents and profits for life, but in the principal case it was a trust to pay over the rents and profits to another, and therefore the estate must remain in the trustees to perform the will, (8 Vin. 262. pl. 19. 1 Eq. Ca. Abr. 383, 384;) and this decree was affirmed in the house of lords. 3 Bro. C. P. 458. See 3 Bos. & Pul. 179. So, where lands were devised to trustees and their heirs in trust to pay out of the rents and profits, after deducting rates, taxes, and repairs, the residue to C. S. for life, and after his decease to the use of the heirs male of the body of C. S., with remainder over; it was held by lord Thurlow that the use was executed in the trustees during the life of C. S., who had only a trust-estate for life, and the remainder in tail was a legal estate which could not unite and incorporate together, and C. S. could not suffer a valid recovery; for, in order to make a good tenant to the præcipe, there must either be a legal estate for life, and a legal remainder in tail, or an equitable estate for life, with an equitable remainder in tail. 1 Bro. C. C. 75. And also, where lands were devised to trustees and their heirs in trust, that they should, out of the rents and profits or by sale or mortgage of the whole, or so much of the estate as should be necessary, raise a sum sufficient to pay the testator’s debts and legacies, and afterwards in trust and to the use of T. B. for life, with several remainders over, the question was, whether the legal estate vested in the trustees. Lord Hardwicke was of opinion that the devise to the trustees and their heirs carried the whole fee to them, and therefore the estate for life, as well as the estates in remainder, were merely trust-estates in equity; that part of the trust was to sell the whole, or a sufficient part, of the estate for the payment of debts and legacies, which would carry a fee by construction, though the word “heirs” were omitted in the devise, as in 1 Eq. Ca. Abr. 184; for the trustees must have a fee in the whole estate to enable them to sell, because, it being uncertain what they may sell, no purchasor could otherwise be safe; that the only doubt he had was on the case of lords Say and Seal vs. lady Jones, before lord King, and affirmed in the house of lords, as to that point; but, on examination, that case differed in a material part; and, taking together all the clauses of that will, it only amounted to a devise to trustees and their heirs during another’s life, upon which a legal remainder might be properly limited. 1 Vez. 143, S. C. 2 Atk. 246, 570. And it was taken for granted in 2 Vez. 646, that a devise to trustees and their heirs in trust, to pay the rents and profits to another, vested the legal estate in the trustees. For in general the distinction is, that where the limitation to trustees and their heirs is in trust to receive the rents and profits and pay them over to A. for life, &c., this use to A. is not executed by the statute, but the legal estate is vested in the trustees to enable them to perform the will; but where the limitation is to trustees and their heirs in trust, to permit and suffer A. to receive the rents and profits for his life, &c., the use is executed in A., unless it be necessary the use should be executed in the trustees to enable them to perform the trust, as in the case of Harton vs. Harton, above mentioned. So, in Taunt. 109, the devise being to trustees and their heirs in trust, to pay unto, or permit and suffer the testator’s niece to have, receive, and take, the rents and profits for her life, it was held that the use was executed in the niece, because the words to permit, &c. came last; and in a will the last words shall prevail. See 1 Eq. Ca. Abr. 383. As where lands were devised to trustees and their heirs to the intent and purpose to permit A. to receive the rents and profits for his life, and after that the trustees should stand seised to the use of the heirs of the body of A., with a proviso that A., with the consent of the trustees, might make a jointure on his wife, it was held that this was a use executed in A., and not a trust-estate; for it would have been a plain trust at common law, and what was a trust of a freehold of inheritance at common law is executed by the statute, which mentions the word “trust” as well as “use;” and the case in 2 Vent. 312, adjudged to the contrary upon this point, was denied to be law. 1 Lutw. 814, 823, S. C. 2 Ld. Raym. 673. 2 Salk. 679. And the same distinction was taken by lord Kenyon in the case of Doe, on the demise of Woolley vs. Pickard, Stafford summer assizes, 1797, and by Mr. Justice Lawrence in Jones vs. Prosser, Worcester spring assizes, 1798.
The statute of uses is not held to extend to copyhold estates, for it is against the nature of their tenure that any person should be introduced into the estate without the consent of the lord, (Gilb. Ten. 170;) nor to leases for years which are actually in existence at the time of their being assigned to the use; as where A., possessed of a lease for years, assigns it to B., to the use of C., all the estate is in B., and C. takes only a trust or equitable estate. But if A., seised in fee, makes a feoffment to the use of B. for a term of years, the term is served out of the seisin of the feoffee, and is executed by the statute. It is the same if he bargains and sells the estate of which he is seised in fee for a term of years. Dy. 369, a., and in the margin. 2 Inst. 671.
Nor does the statute of uses extend to cases where the party seised to the use and the cestuy que use is the same person, except there be a direct impossibility for the use to take effect at common law. Bac. Law Tracts, 352, 2 ed. 4 M. & S. 178. In that case, a release was made to A. and C. and their heirs, habendum to them and their heirs and assigns as tenants in common, and not as joint-tenants, to the use of them, their heirs and assigns, held that A. and C. took as tenants in common. Cro. Car. 230. Jenkins vs. Young, ibid. 244. And see Cruise’s Dig., title Use, S. 31, et seq.
But, where the purposes of a trust may be answered by giving the trustees a less estate than a fee, no greater estate shall arise to them by implication, but the uses in remainder limited on such lesser estate so given to them shall be executed by the statute. Doe d. White vs. Simpson, 5 East, 162. 1 Smith 383. And a devise in fee to trustees, without any specific limitation to cestuy que trust, the latter takes a beneficial interest in fee. 8 T. R. 597. And an express devise in fee to trustees may be cut down to an estate for life upon an implication of intent. 7 T. R. 433. So where the trustees are to receive and pay rents to a married woman, upon her death the legal estate is executed in the person who was to take in remainder. 7 T. R. 654.—Chitty.
[(z) ] Dyer, 155.
[(a) ] 1 And. 37, 136.
[58 ] It is the practice to introduce only the names of the trustee and the cestuy que trust, the estate being conveyed to A. and his heirs, to the use of A. and his heirs, in trust for B. and his heirs; and thus this important statute has been effectually repealed by the repetition of half a dozen words.—Christian.
[(b) ] Bacon’s Law of Uses, 335. Jenk. 244.
[(c) ] Poph. 76. Dyer, 369. 2 T. R. 448.
[(d) ] 1 Eq. Ca. Abr. 383, 384.
[59 ] I should be inclined to think that the case, as expressed by the learned judge, would be construed a use executed by the statute. In the authority referred to in 1 Eq. Ca. Abr. 383, the trustees were first to pay legacies and annuities and then to pay over the surplus to a married woman for her separate use. To prevent a trust from being executed by the statute in cases of this kind, it seems necessary that the trustees should have some control and discretion in the application of the profits of the estate,—as to make repairs, or to provide for the maintenance of the cestuy que trust. 1 Bea. 75. 2 T. R. 444. Where there is no such special circumstance in the grant, it appears to be equivalent to a direction to the trustees to permit the cestuy que trust to take the profits of the estate, which is fully established to be a use executed. 1 Eq. Ca. Abr. 383.
But if it is to permit a married woman to take the rents and profits for her separate use, the legal estate will be vested in the trustees, in order to prevent the husband from receiving them subject to no control. 7 T. R. 652.—Christian.
[(e) ] 1 Hal. P. C. 248.
[(f) ] Vaugh. 50. Atk. 591.
[(g) ] 2 Freem. 43.
[60 ] But it is held that if a man be cestuy que trust of a term of years, it is not assets within this statute, for it extends only to a trust of land in fee. 2 Vern. 248. 8 East, 486. 4 B. & A. 684. And see further, 2 Saund. 11, a., n. 17, and note m. by Patteson.—Chitty.
[(h) ] 1 Chanc. Rep. 254. 2 P. Wms. 640.
[61 ] It has been decided that, when the legal and equitable estates meet in the same person, the trust or equitable estate is merged in the legal estate; as if a wife should have the legal estate and the husband the equitable, and if they have an only child, to whom these estates descend, and who dies intestate without issue, the two estates having united, the descent will follow the legal estate, and the estate will go to an heir on the part of the mother; and thus (which appears strange) the beneficial interest will pass out of one family into another, between whom there is no connection by blood. Goodright vs. Wells, Doug. 771.
Before the statute of uses there was neither dower nor tenancy by the curtesy of a use: but since the statute, the husband has curtesy of a trust-estate, though it seems strange that the wife should, out of a similar estate, be deprived of dower. See ante, p. 132, n.—Christian.
But this distinction is accounted for by lord Redesdale in 2 Sch. & Lif. 388; and see 2 Saund. 26, note v.—Chitty.
The statute 3 & 4 Will. IV. c. 105 gives to widows, whose marriage took place since December 31, 1833, dower out of lands to which their husbands were beneficially entitled in equity for an estate of inheritance.—Kerr.
[(i) ] Hard. 494. Burgess & Wheat, Hil. 32 Geo. II. in Canc.
[62 ] See, in general, 2 Saund. Rep. 42, c. 96, b., et seq., and id. index, tit. Covenants. On the authority of Roe vs. Tranman, it was held in 4 Taunt. 20 that a covenant to stand reised is good, though the use be a freehold to arise at a future time.
The only considerations which will support a covenant to stand seised are blood and marriage: therefore, if a person covenant to stand seised to the use of a relation and a stranger, it is said that the whole use will vest in the relation. 2 Roll. Abr. 784, pl. 2 & 4. So where a man covenants to stand seised to the use of himself for life, with remainders over to his relations, and with a power for the tenant for life to make leases, this power is void, for the lessees would be strangers to the consideration of blood. Cro. Jac. 181. Cross vs. Faustenaitch. So if a man should covenant to stand seised to the use of himself for life, with remainders to the use of trustees, (who are not his relations,) for the purpose of preserving contingent remainders, with remainder to his first and other sons in tail, &c., no use would vest in the trustees, because the consideration does not extend to them. This is a principal reason why covenants to stand seised are fallen into disuse. 2 Saunders, U. & T. 82.—Chitty.
It is not by the words, but by the nature of the instrument, that this and the next species of conveyance—viz., bargain and sale—are to be distinguished; for the words “covenant to stand seised to uses” are not essential in the one, nor “bargain and sell” in the other. For if a man, for natural love and affection, bargain and sell his lands to the use of his wife or child, it is a covenant to stand seised to uses, and, without enrolment, vests the estate in the wife or child. So if for a pecuniary consideration he covenants to stand seised to the use of a stranger, if this deed be enrolled within six months it is a good and valid bargain and sale under the statute, and the estate vests in the purchasor. 7 Co. 40, b. 2 Inst. 672. 1 Leon. 25. 1 Mod. 175. 2 Lev. 10. A bargain and sale without enrolment may be construed and act as a grant or surrender, so little are the words “bargain and sell” necessary to it. 1 Prest. Conv. 38.—Archbold.
How a covenant to stand seised is to be pleaded, see 3 Salk. 306. 2 Ves. Sen. 253. 2 Saund. 97, b., c. Lutw. 1207. Carth. 307. 3 Lev. 370. 2 Chitty on Pleading, 4th ed. 576.—Chitty.
[(k) ] Bacon, Use of the Law, 151.
[(l) ] Ibid. 150.
[(m) ] Cro. Jac. 696.
[(n) ] See page 142.
[(o) ] 2 Mod. 252.
[63 ] It must be borne in mind that in this and former instances, where it is said the statute annexes the possession upon the vesting of the use, an actual occupancy or possession of the land is not meant.
The effect of the statute is to complete the title of the bargainee, or to give him a vested interest, by which his ownership in the estate is as fully confirmed as it would have been, according to the common law, by livery and seisin. Mr. Preston, in his Conveyancing, vol. 2, page 211, has discussed and explained this subject with his usual ability. See also Cruise, Dig. index, Lease and Release. See also the opinion of Mr. Booth in Cases and Opinions, 2 vol. 143 to 149, tit. Reversions, edit. 1791. As to the effect of a conveyance by lease and release of a reversion expectant on a term, and the mode of pleading such a conveyance, see Co. Litt. 270, a. n. 3. 4 Cruise, 199, and 2 Chitty on Pleading, 4th ed. 578, note e.—Chitty.
[(p) ] Page 324.
[(q) ] See Appendix, N° II. 1, 2.
[(r) ] Co. Litt. 270. Cro. Jac. 604.
[64 ] But the lease for a year is now rarely or ever actually made, as it has been enacted by statute 4 Vict. c. 21, s. 1, that every deed of release which shall be enacted after the 15th of May, 1841, and which shall be expressed to be made in pursuance of this act, shall be as effectual for the purposes therein expressed—and shall take effect as a conveyance to uses or otherwise, and shall operate in all respects, both at law and equity—as if the releasing party or parties who shall have executed the same had also executed in due form a lease for a year, although no such deed shall be executed. And by s. 2, the recital or mention of a lease for a year, executed before the passing of this act, is to be evidence of the execution of such lease for a year. The effect of this act, therefore, is to dispense with the lease for a year; and a release operating by virtue of the act will have the same effect as lease and release. It is to be observed, however, that a lease for a year may still be employed if the parties desire it. Since the statute 8 & 9 Vict. c. 106, the grant has been usually preferred, and is now the assurance most commonly adopted for the conveyance as well of corporeal as of incorporeal hereditaments.—Stewart.
[(s) ] Page 335.
[(t) ] See Appendix, N° II. page xi.
[(u) ] Co. Litt. 237.
[65 ] Mr. Ritso, among his other grounds of complaint against Blackstone, states that he does not with sufficient distinctness explain the difference between droiturel and tortious conveyances.
Droiturel conveyances are of the right only, and not of the possession, and are either primary or secondary. Of the first description are all original conveyances of things which lie only in grant and not in livery, and of which no visible possession can be delivered, as advowsons, rents, commons, reversions, and other incorporeal hereditaments. Those of the second class are where there is already such subsisting privity of estate between the parties that any further delivery of possession would be vain and nugatory, as in the case of release, confirmation, and surrender. Conveyances which are thus made can be evidently no other than droiturel,—that is to say, they cannot enure to pass more than may be innocently or rightfully conveyed; for the transfer of a right becomes a mere nullity when exercised beyond the subsisting right to transfer: nemo potest plus juris ad alium transferre quam ipse habet. On the other hand, all original or primary conveyances which are wrongfully made of things in livery, as of lands or tenements, (of which the corporal possession is made over by the act of livery of seisin, without any reference to the right,) are said to be tortious. Thus, if A., tenant in tail, leases to C. for life, remainder to D. in fee, the discontinuance is in fee; for both estates are created by one and the same livery. But if A., having leased to C. for his life, had afterwards granted the reversion to D. in fee, the discontinuance would have been then for life only, and not in fee; for the reversion lies in “grant,” and not in “livery.” And so it is of a bargain and sale enrolled, a lease and release, a covenant to stand seised, and the like. They are all of them droiturel or innocent conveyances, because they operate upon the right only, and not by transmutation of the possession, and consequently can convey no more than may be rightfully and lawfully conveyed. Co. Litt. 271, b., 309, b.
Again, if tenant in tail makes a feoffment it is a discontinuance, because the feoffor’s estate is created by livery of seisin, and is of a greater quantity of estate than can be lawfully carved out of an estate-tail. But if the tenant in tail is disseised, and releases in fee to the disseisor, albeit the fee is not his to release, yet it is no discontinuance; for there is no transmutation of the possession or freehold by the release, but only a transfer of the right. Co. Litt. 42, a., 212, a. Ritso’s Introd. 102.—Sharswood.
[66 ] A bond is here erroneously classed among deeds which charge lands. It has no such effect at law, either before or after the death of the obligor. It merely creates a debt which binds the heirs of the obligor (if heirs are named in the instrument) to the extent of the value of the real assets descended to them; but it does not bind the lands themselves, either in the hands of the obligor, or in those of his heirs, or of a purchaser from either of them. In equity, indeed, under the doctrine of tacking and after the death of the obligor, a bond may have the effect of imposing an additional charge upon land already charged.—Sweet.
[(v) ] See Appendix, N° III. page xiii.
[67 ] If in a bond the obligor binds himself without adding his heirs, executors, and administrators, the executors and administrators are bound, but not the heir, (Shep. Touch. 369;) for the law will not imply the obligation upon the heir. Co. Litt. 209, a. A bond does not seem properly to be called an encumbrance upon land; for it does not follow the land like a recognizance and a judgment; and even if the heir-at-law alienes the land, the obligee in the bond by which the heir is bound can have his remedy only against the person of the heir to the amount of the value of the land; and he cannot follow it when it is in the possession of a bonâ fide purchaser. Bull. N. P. 175.—Christian.
[68 ] Obligees may now, under the statute 11 Geo. IV. and 1 W. IV. c. 47, maintain an action of debt against the heirs or devisees of obligors, though such heirs or devisees may have aliened the lands or hereditaments descended or devised to them before process sued out against them; and they are answerable for the bond debts of their ancestors or devisors to the value of the land so descended or devised. And now, by the 3 and 4 W. IV. c. 104, it is enacted that, when any person shall die seised of any real estate, whether freehold or copyhold, the same shall be assets for the payment of all his just debts, as well due on simple contract as on specialty.—Stewart.
[(w) ] Co. Litt. 206.
[(x) ] 2 Keb. 553, 555. Salk. 596, 597. 6 Mod. 11, 60, 101.
[69 ] If a bond lie dormant for twenty years, it cannot afterwards be recovered; for the law raises a presumption of its having been paid, and the defendant may plead solvit ad diem to an action upon it. 1 Burr. 434. 4 Burr. 1963. And in some cases, under particular circumstances, even a less time may found a presumption. 1 T. R. 271. Cowp. 109. This length of time, however, must be understood as only raising a presumption,—which presumption of course may be rebutted by evidence on the part of the plaintiff.—Archbold.
[(y) ] Bro. Abr. tit. recognizance, 8-14.
[70 ] A recognizance has priority in point of payment over a common obligation; but a judgment or decree (not being a mere interlocutory decree) takes place of a recognizance. Littleton vs. Hibbins, Cro. Eliz. 793. Searle vs. Lane, 2 Freem. 104. S. C. 2 Vern. 89. Perry vs. Phelips, 10 Ves. 34. Between decrees and judgments, the right to priority of payment is determined by their real priority of date, without regard to the legal fiction of relation to the first day of term. Darston vs. Earl of Oxford, 3 P. Wms. 401, n. Joseph vs. Mott, Prec. in Cha. 79. Morrice vs. Bank of England, 3 Swanst. 577.—Chitty.
[(z) ] Stat. 29 Car. II. c. 3. See page 161.
[71 ] A recognizance not enrolled will be considered as an obligation or bond only, but, being sealed and acknowledged, must be paid as a debt by specialty. Bothomly vs. Lord Fairfax, 1 P. Wms. 340. S. C. 2 Vern, 751. If enrolment is allowed by special order, after the proper time has elapsed, this, for most purposes, makes the recognizance effectual from the time of its date; but should the cognizor, between the date and the enrolment of the recognizance, have borrowed money on a judgment, the judgment-creditor will be allowed a preference. Fothergill vs. Kendrick, 2 Vern. 234.—Chitty.
[(a) ] See page 160.
[(b) ] Co. Litt. 237. 2 Saund. 47.
[(c) ] Hickes, Dissertat. Epistolar. 9.
[(d) ] Dalrymple on Feodal Property, 262, &c.
[(e) ] Stat. 2 & 3 Anne, c. 4. 6 Anne, c. 35. 7 Anne, c. 20. 8 Geo. II. c. 6.
[72 ] By the register-acts, a registered deed shall be preferred to a prior unregistered deed; yet it has been decreed by lord Hardwicke, if the subsequent purchaser by the registered deed had previous notice of the unregistered one, he shall not avail himself of his deed, but the first purchaser shall be preferred. 1 Ves. Sen. 64.—Christian.