CHAPTER II.

MODERN STATUTORY FORMS.

WILLIAMS, REAL PROP. (17th ed.), 232. In modern times, down to the year 1841, the kind of conveyance employed, on every ordinary purchase of a freehold estate, was called a lease and release; and for every such transaction, two deeds were always required.

ID., 238. This cumbrous contrivance of two deeds to every purchase continued in constant use down to the year 1841, when the Act was passed to which we have before referred. This art provided that every deed of release of a freehold estate, which should be expressed to be made in pursuance of the act, should be as effectual as if the releasing party had also executed, in due form, a lease for a year, for giving effect to such release, although no such lease for a year should be executed.

In the year 1845 it was provided by the Act to amend the law of real property that after the 1st of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. We have seen that, at common law, corporeal hereditaments were said to lie in livery, as being transferable by delivery of possession; while incorporeal hereditaments were said to lie in grant, because a deed of grant was required to convey them, if desired to be transferred apart from the possession of anything corporeal. Since this enactment, therefore, a simple deed of grant has been sufficient for the transfer of all freehold estates in possession, or corporeal hereditaments. And the method so in

'Stat 4 & 5 Vict., c. 21, repealed as obsolete by Stat. 37 & 38 Vict., c. 96.

troduced of conveying freeholds by deed of grant has ever since superseded all others in practice.

3 WASHBURN, REAL PROP. (5th ed.), 380. Many of the States have prescribed forms of deeds in their statutes; but this has generally been regarded rather as a matter of direction and declaration that such a form would be sufficient, than that it should be required. Most of these statutes, in fact, directly or indirectly refer to the common-law modes as familiar and effectual forms of conveyance. Thus, while the form of deed in common use in Massachusetts is borrowed from the ancient charter of feoffment, modified by a declaration of the uses to which the estate is to be held, the statute expressly refers to "bargain and sale," and "other like conveyance of an estate," and declares that "a deed of quitclaim and release, of the form in common use in this State, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale."

ID., 384. It may be said, to sum up the foregoing remarks, that in almost all of the United States a writing which contains a grantor, a grantee, a description of the land or interest therein granted, and words which may be construed to imply a grant by the grantor to the grantee, is a sufficient deed, if executed according to the law of the State where the land is situated. Such a deed is not strictly a deed of feoffment, as no livery of seisin is necessary; nor is it a deed operating by the statute of uses. It is rather a deed resulting from the various statutes which have been from time to time enacted in the various States, and it is substantially and practically the same in all the States. The effect of these statutes is well described in two Maine cases previously cited, in which the court says that, under the statutes of the State, a person owning real estate, having a right of entry on it, whether seised of it or not, may convey such interest, or any part of it, by a deed acknowledged and re'Mass. Pub. Stat., c. 120. §§ 2, 4.

corded, with such limitations as the grantor pleases, provided they do not violate any rule of public policy.

Thus, in Wyman v. Brown,1 Walter, J., says: "We are also of opinion that effect may be given to such deeds (of a future estate) by force of our own statutes, and independently of the statute of Uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as our statutes require, operate more like feoffments than like conveyances under the statute of Uses.". This being the case, there seems to be little necessity left for the operation of the statute of Uses, although it is often mentioned by the courts as supporting deeds of future interests. There are, however, cases where the conveyance does not contain suitable words to imply a grant, but does contain words which may fairly imply a covenant or agreement in regard to the title of the land. In such cases, the statute of Uses is still sometimes relied upon to give effect to these deeds as deeds of bargain and sale, or covenant to stand seised. A more effectual and common way of enforcing such instruments, where a valuable consideration has been paid, is to apply to a court of equity to compel a valid legal conveyance of the land. Under the statutes before referred to, the deeds operate as deeds of feoffment; yet livery of seisin is unnecessary, the deed itself vesting the seisin in the grantee.

4 KENT. COM., 301, note. Lord Hardwicke is reported to have said, in the course of his opinion, in Hopkins v. Hopkins (1 Atk. Rep. 591), that the Statute of Uses had no other effect than to add, at most, three words to a conveyance. This was rather too strongly expressed; but I presume the abolition of uses with us will not have much greater effect. It was the abolition of a phantom. The word grant is not more intelligible to the world at large than the words bargain and sale; and the fiction indulged for 200 years, that 1 50 Me. 139.

1

the bargain raised a use, and the statute transferred the possession to the use, was as cheap and harmless as anything could possibly be. It would, perhaps, have been as wise to have left the Statute of Uses where it stood, and to have permitted the theory engrafted upon it to remain untouched, considering that it had existed so long, and had insinuated itself so deeply and so thoroughly into every branch of the jurisprudence of real property.

N. Y. REAL PROP. LAW, § 207. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by writing subscribed by the person declaring the same.

LOGAN'S ANN. R. P. L. 62. Parol acts and declarations and gifts may also effect by estoppel a transfer in equity, of the title to real estate, notwithstanding the statutes above cited, particularly if possession is taken and improvements made, and innocent parties are misled by acts or declarations of the owner. People v. Goodwin, 5 N. Y. 568.— Logan's note.

CHAPTER III.

DEVISE.

LIT., § 167. Also, in some boroughs, by the custome, a man may devise by his testament his lands and tenements, which he hath in fee simple within the same borough at the time of his death; and by force of such devise he to whome such devise is made, after the death of the devisor, may enter into the tenements so to him devised, to have and to hold to him, after the forme and effect of the devise, without any liverie of seisin thereof to be made to him, &c.

Co. LIT., III, b. And well said Littleton, that lands and tenements were devisable in burghes by custome; for that at the common law no lands or tenements were devisable by any last will and testament, nor ought to be transferred from one to another, but by solemne livery of seisin, matter of record, or sufficient writing; but as Littleton here saith, that by certain private customes in some burghes they are devisable. But now since Littleton wrote, by the statutes of 32 and 34 H. 8, lands and tenements are generally devisable by the last will in writing of the tenant in fee simple, whereby the ancient common law is altered, whereupon many difficult questions, and most commonly disherison of heires (when the devisors are pinched by the messengers of death) doe arise and happen. But these statutes take not away the custome to devise, whereof Littleton speaketh; for though lands devisable by custome be holden by knights service, yet may the owner devise the whole land by force of the custome, and that shall stand good against the heire for the whole. But the devise of lands holden by knights service by force of the statutes is utterly void for a