So, also, the consideration of a marriage to be had, will COVENANT raise an use". TO STAND Consideration A man may likewise covenant to stand seised to the use of A. the wife of his brother, in consideration that she is of marriage. the wife of his brother, and this shall raise a good estate to her; for the love which he bears towards his brother extends in his right to his wife*. And if a man covenants, in consideration of natural love and affection to his son, to stand seised to the use of his son for life, the remainder to such wife as the son shall afterwards have for life, the remainder to the first son of the son on the wife begotten, &c. though the wife be a stranger to the consideration, yet the estate limited to her is well raised for the subsequent estate, because the covenantor intended the advancement of his posterity; and without a wife the son cannot have a lawful postérity". But if a man covenant to stand seised to the use of himself for life, with remainder to the use of trustees (not being of the blood of the covenantor) to preserve contingent remainders, with remainder to his first and other sons in tail, &c. no use will vest in those trustees, because, as no other consideration than that of natural love and affection, arising from relationship, is deemed a sufficient consideration to raise an use by this deed, it of course cannot vest in trustees, who are strangers. Again, if a man covenant to stand seised 'to the use of himself for life, with power to make leases, this power cannot be exercised as the limitation of an use, but will be void; for as no use will arise without a good consideration, it cannot arise to the lessees, for where the persons are altogether uncertain, and the terms unknown, there can be no consideration; but the consideration of love, &c. COVENANT in a bargain and sale may be averred, and will support it, although not expressed in the deed". TO STAND By the statute of uses, s. 4 & 5, a rent may be reserved or made payable on a covenant to stand seised". 3. Of the form of a covenant to stand seised. The words "covenant to stand seised" to the use, &c. are the most proper and technical words of this conveyance; but as the consideration is the foundation of it, these words are not essential to its operation. Where, therefore, a man, in consideration of natural love, and for augmentation of his daughter's portion, " gave, granted, bargained and sold, aliened and enfeoffed," lands to his daughter, this was held to enure as a covenant to stand seised, because of the consideration. And where there is a feoffment by deed to a relation and his heirs, though nothing can pass by the feoffment for want of livery of seisin; yet as there is an agreement by deed, and the parties are relations, the law holds it a consideration for raising an use, and construes it a covenant to stand seised to the use of the person specified in fee; and the estate passes, not by feoffment, as the deed imports, but by virtue of the statute of uses; for ut res magis valeat, &c. the feoffment shall operate as a covenant to stand seised. So where, in a settlement, it was declared, that if the settlor had no issue, then he "gave, granted, and confirmed," to the use of his kinswoman, and the heirs of her body, an use was held to be well raised. Hence a conveyance, which is void as a release, may in some cases be good as operating by way of covenant to TO STAND stand seised; as where K. by lease and release, in consi- COVENANT deration of the natural affection he had for his brother, "granted, released, and confirmed" to his said brother, certain lands, &c. to hold to him and his heirs, after the decease of himself the said K. Though this was void as a rélease, as being the grant of a freehold to commence in futuro, yet the court were unanimously of opinion that it would operate as a covenant to stand seised (1). 4. Of the operation and construction of a covenant to stand seised. In a covenant to stand seised, the estate necessarily continues in the covenantor until the use which is to be executed by the statute arises". If, therefore, a man covenant to stand seised to the use of A. for life, remainder to the use of B. for life, remainder to the use of C. in fee, and A. refuses, B. shall not take his estate presently, as he would in the case of the like limitations by feoffment, where all the estate passes out of the feoffor, and all the uses are created out of it as out of one and the same root, but the land shall remain in the covenantor till the next use arises; for in the case of a covenant to stand seised, the consideration, which is the cause that raises the several' uses, is also several, and all the uses grow and rise out of the estate of the covenantori. So, if a man covenant to stand seised of the manor of D. which he shall thereafter purchase, to the use of J. S. and he afterwards purchase the manor, yet this is void *. So, if a man covenant to stand seised of the land that he shall afterwards purchase to the use of his son, and then purchases land to the use of himself and his heirs, the fee i Per Manw. Ch. B. 1 Rep. 154, a. 75: Roe v. Farmer, 2 Wils. 1 Co. 1 k 2 Rol. Abr. 790, pl. 8; Moor, 342; Cro. Eliz. 401.. (1) See the form of deeds of covenant to stand seised, 2 Bridgm. Conv. 102, 139, 140; Wilde's Sup. vol. i No. lxx. p. 459. TO STAND SEISED. COVENANT is in the father'. For when a man exercises an ownership over any lands, you must suppose him to have a power to bind them; but he that has no interest, has no power to bind them; and therefore such a covenant in equity, before the statute, could not oblige him to a specific performance, for that were in equity to bind the land, which is absurd; and since the covenant is void in equity, there can be no execution by the statute; for the rules of law are equally strict in avoiding this repugnancy; as in law, every disposal supposes a precedent property; and, consequently, every covenant to stand seised pre-supposes a precedent seisin. And another reason why the use declared upon the covenant is bad, is this; because the use must be limited by the donor or feoffor; for he must limit the use, who at the time of the limitation had the disposal: now in this case the donor limits the fee to the purchaser, which controls the intent of the covenant". By the same rule it is said, that if a mortgagor, in consideration of so much money paid by J. S., covenants that, after redemption, he will stand seised to the use of J. S. and his heirs, this is a void covenant, for at the time of the contract he had no estate or interest°. A covenant to stand seised is a rightful or harmless conveyance, and passes no interest but that of which the. covenantor may lawfully convey; nor divests any estate, nor works any discontinuance; for as nothing but the use passes, and as no use can possibly be greater than the estate out of which it arises, it follows, that where a greater. use is expressed to be given than the estate of the covenantor out of which it arises, such greater use is merely void, and the statute executes the poss ssion to so much only of the use as is lawfully granted. CHAP. II. OF A BARGAIN AND SALE. IN treating of a Deed of Bargain and Sale, which, if considered in its full extent, and as constituting one of the assurances which give effect to the conveyance by LEASE AND RELEASE is very comprehensive and important*, I shall endeavour to explain, I. THE NATURE AND ORIGIN OF THIS SPECIES OF ASSURANCE. II. WHO MAY MAKE A BARGAIN AND SALE. III. WHAT MAY BE THE SUBJECT OF A BARGAIN AND IV. THE REQUISITES TO CONSTITUTE A BARGAIN V. THE EFFECT AND OPERATION OF A BARGAIN AND 1. OF THE NATURE AND ORIGIN OF A BARGAIN AND SALE. A BARGAIN and sale is a kind of real contract, founded upon some pecuniary or other valuable consideration, for the passing of an estate of inheritance or freehold in possession, reversion or remainder, in manors, lands, tenements or hereditaments, by deed indented and enrolled,. which is effected by means of the statute of uses in the manner hereafter noticed. This mode of conveying lands was created and established by the 27 Henry 8, cap. 10, usually styled the 33. • Fearne's Posth. Works, b2 Inst. 672. с Vaugh.51; 8 Co. 93,94 BARGAIN AND SALE. |