Gambar halaman
PDF
ePub

Effect of.

20. The form of a recognizance is thus-" That A. B. doth acknowledge to owe to our sovereign lord the king, or to C. D., the sum of £100," with condition to be void on performance of the thing stipulated. This being either certified to, or taken by the officer of some court, it is witnessed only by that officer, not by the party's seal. So that it is not, in strict propriety, a deed: though the effects of it are greater than those of a common bond; being allowed a priority in point of payment.

21. A recognizance is a lien on all the lands which the cognizor had at the time of its acknowledge: ment; and also upon all those which he afterwards acquires. So that no alienation by the cognizor, will prevent the cognizee from extending the land.

22. A recognizance is also a lien on all the lands. whereof the cognizor died seised, in the possession

Tit. 17. § 27. of his heir or devisee. Where an estate in reversion, expectant on an estate tail, falls into possession, it then becomes liable to the recognizances, not only of the original donor, but also of all the intermediate heirs, who were entitled to such reversion: because it is a direct lien on lands; in which respect it differs from a bond.

Bothomly v.
Fairfax, I P.
Wms. 334.

23. Whenever the cognizee appears in court and admits satisfaction, the recognizance is discharged and vacated on the roll.

24. A recognizance not enrolled will be considered as a bond, being sealed and acknowledged; and must be paid as a debt by specialty.

25. There are two other kinds of recognizances of a private sort, which are said to be in the nature of Tit. 14. § 13. a statute merchant, and statute staple, of which an account has been already given.

zances are

26. It has been stated, that by the rules of the Bonds and common law no right of action is assignable. But in Recogni modern times, bonds, recognizances, and judgements assignable. obtained in actions of debt, or acknowledged under

1

a warrant of attorney, are constantly assigned, though in compliance with the ancient principle, the form of assignment of a chose in action is in the nature of

a declaration of trust, and an agreement to permit 2 Comm.442. the assignee to use the name of the assignor, in order to recover the thing assigned. Therefore when a bond, recognizance, or judgement is assigned, it must still be sued for in the name of the original obligee or cognizee: the person to whom it is transferred being rather an attorney, than an assignee. Our courts of equity, considering that in a commercial country much property must lie in contract, will 3 P. Wms. protect the assignment of chose in action, as much as the courts of law will that of a chose in pos

session.

199.

27. The king is an exception to this rule, for he Dyer, 30 b. might always either grant or receive a chose in Pl. 208. action by assignment.

28. An assignee of a chose in action takes it sub- 1 Ab. Eq. 44. ject to all the equity to which it was liable in the 2 Vern. 692. hands of the original party.

765.

342.

29. A defeazance on a bond, or recognizance, or Defeazance of a Bond, judgement recovered, is a condition, which, when &c. performed, defeats, or undoes it, in the same manner 2 Comm. as a defeazance of an estate. It differs only from the common condition of a bond in this, that the one is always inserted in the bond or recognizance; the other is made between the same parties, by a separate, and frequently a subsequent deed. This, like 1 Inst. 237 a. the condition of a bond, when performed, discharges Forest, and disincumbers the estate of the obligor or cognizor. 2 Saund. 47.

Fowell v.

n. 1.

TITLE XXXII.

DEED.

CHAP. IX.

Of a Bargain and Sale.

1. Deeds derived from the Sta-
tute of Uses.

4. Bargain and Sale.

12. Who may convey by.

17. What may be conveyed by.

22. Requires a pecuniary Consi-
deration.

30. A Rent may be reserved.

31. Must be enrolled.

37. Exceptions. Lands in Cities. 38. And Terms for Years.

39. Relation of the Enrolment.,

Deeds derived from

the Statute of Uses.

Tit. 11. c. 4. $9.

H

SECTION 1.

AVING treated of the several kinds of deeds which derive their effect from the common law; we now come to explain the nature and operation of those conveyances which derive their effect from the statute of uses.

2. It has been stated that the statute of uses has given rise to several new sorts of conveyances, which operate contrary to the rules of the common law. It being settled, that whenever a use was well raised in any person, the statute immediately transferred the possession to him, without entry or claim, or even assent; and the possession thus transferred was not a mere seisin or possession in law, but an actual seisin Tit. 11. c. 3. and possession in fact; not a mere title to enter on the land, but an actual estate.

$40.

3. Conveyances derived from the statute of uses are of two kinds: First, where the deed only transfers the use, which is said to operate without any

transmutation of possession; because the alteration of the legal seisin and possession is effected by the mere operation of the statute. Secondly, where the legal estate is transferred by a common law assurance, and a use is declared on such assurance. This is said to operate by transmutation of possession, because the legal seisin is first transferred by a common law assurance.

Sale.

Plowd. 303.

8 Rep. 94 a.

4. The first deed which operates without trans- Bargain and mutation of possession is a bargain and sale; which was well known and often used before the statute of uses; it being then a common practice for a person who was seised of lands, to bargain and sell them to another; in which case, if the consideration was sufficient to raise a use, the bargainor became immediately seised to the use of the bargainee. All which might have been transacted without the formality of a deed.

5. A bargain and sale is therefore a contract by 2 Inst. 671. which a person conveys his lands to another, for a pecuniary consideration, in consequence of which a use arises to the bargainee; and the statute 27 Hen. VIII. immediately transfers the legal estate and possession to the bargainee. A bargain and sale may be in fee, for life, or for years.

6. The proper and technical words of this con- 2 Inst. 671. veyance are, bargain and sell; but any other words that would have been sufficient to raise a use, upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale. Proper words of limitation must however be inserted.

Grey v.

7. Thus if a man, for money, aliens and grants 8 Rep. 94 a. lands to one and his heirs, or the heirs of his body, Edwards, or for life, by deed indented and enrolled, it will 4 Leon. 110. amount to a bargain and sale.

Idem.

Fox's Case, 8 Rep. 93.

1 Inst. 49 a.

2 Roll. Ab. 787. pl. 5. Anon.

3 Leon. 16.7

8. So if a person covenants, in consideration of money, to stand seised to the use of his son, in fee; if the deed be enrolled, it will be a good bargain and sale, though the words, bargain and sell be not used.

9. E. Fox demised lands to G. S. and others, for three lives, reserving rent. Afterwards, by indenture, in consideration of 50 l. paid him by T. Powis, he demised, granted, set, and to farm let, to the said T. Powis, the same tenements, to hold for the term of 99 years, reserving rent. The first lessee did not attorn; and the question was, whether the demise to Powis should amount to a bargain and sale, so that the reversion, with the rent, should pass to Powis, by the statute of uses, without any attornment. It was adjudged that this demise and grant, in consideration of 50 l., amounted to a bargain and sale for 99 years; there being no necessity for the precise words bargain and sell. It was said, that as uses arise from the intention of the parties; if, by any clause in a deed, it appears that it was the intent of the parties to pass the land, in possession, by the common law, there no use shall be raised; therefore if any letter of attorney be in the deed, or covenant, to make livery of seisin of the lands, according to the form and effect of the deed, or other such like, it should not pass by way of use.

10. If a father makes a deed of feoffment to his son, and a letter of attorney to make livery, and no livery is made; no use will arise to the son: for then he should be in by the statute in another degree, namely, in the post. For the intention of the parties works much, both in the raising and directing of

uses.

11. If a man, in consideration of natural love and affection, and of money, gives, grants, bargains,

« SebelumnyaLanjutkan »