The Estate continues till a Use arises. 31. In the case of a covenant to stand seised, the estate continues in the covenantor till a lawful use 1 Rep. 154a. arises. Thus, if a person makes a feoffment in fee, to the use of A. for life, remainder to the use of B. for life, remainder to the use of C. in fee; if A. refuses, B. shall take the estate presently. For the feoffor by his feoffment has given all his estate out of him, and all the uses are created out of it, as out of one and the same root; therefore, as long as any of the uses can take effect, the feoffor shall not have the land. In the case of a covenant which raises a use, there the consideration, which is the cause that raises every several use, is several, and all the uses grow and rise out of the estate of the covenantor : therefore, if one refuses, he who is next in remainder shall not take the land presently, but the covenantor shall keep it. A Rent may be created by. Tit. 28. c. 1. § 31. Rivetts v. No Estate is this Convey 32. In consequence of the 4th and 5th sections of the statute of uses, a rent may be created by a covenant to stand seised. 33. A., in consideration of natural love and affection, covenanted to stand seised to the use of himself for life, remainder to B. his son in tail: and to the intent that B. should have a rent issuing out of the lands, during the life of A. Resolved, that B. was well entitled to this rent upon the words of the statute of uses. 34. A bargain and sale, and covenant to stand devested by seised, pass no interest but that which the bargainor ance, or by a or covenantor can lawfully transfer. For as nothing Bargain and Sale. but a use passes by these conveyances; and as no use Tit. 11. c. 3. can be greater than the estate out of which it is cre§ 19. ated; where a use is granted, greater than the legal estate out of which it is to issue, it is merely void; and the statute executes the possession to so much only of the use as is lawfully granted. 35. Thus if a tenant for life, with contingent Tit. 16. c. 6. remainders depending on his estate, conveys in fee, Gilb. Uses, by bargain and sale, or covenant to stand seised, in 140. fee; the bargainee or covenantee will only take an estate for life; and the contingent remainders will not be destroyed. Case, 10 Rep. 95. 1 Atk. 2. 36. So if a tenant in tail bargains and sells his Seymour's estate, or covenants to stand seised of it, in fee simple. The bargainee or covenantee will only acquire a base fee, and the issue in tail may enter on the death of the bargainor. Tit. 2. c. 2. § 11. No Uses can on these be declared 37. No uses can be declared on a bargain and sale, or covenant to stand seised, but to the bargainee or covenantee, because these conveyances only pass a conveyances. use, and the legal estate and possession is transferred by the operation of the statute; so that a use declared on them is a use upon a use. Case, Dyer, 38. A widow, in consideration of 400 l., bargained Tyrrell's and sold to her son all her manors, &c., to hold to 155. him and his heirs, to the use of the widow during her life, &c. It was resolved, that the limitation of the use was void; because a use cannot be engendered on a use. TITLE XXXII. DEED. Origin and 2 Mod. 252. THE classed under those which derive their effect from the statute of uses; but of which only one part is derived from that statute, and the other from the principles of the common law. It is called a lease and release, but is in fact a bargain and sale for a year, and a common law release, operating by way of enlargement; and owes its rise to the following circumstances. 2. The framers of the statute of uses foresaw that freehold estates would thenceforth become transferrable by parol only, without any form or ceremony whatever. The statute of enrolments was therefore made in the same parliament, which would have introduced an almost universal register of conveyances of real estates, but for the omission of bargains and sales for terms of years. 3. In the times of Hen. VI. and Edw. IV., it was not unusual to transfer freehold estates in the following manner. A deed of lease was made to the intended purchaser, for three or four years, and after he had entered into possession, a deed of release of the inheritance was executed to him, which operated to enlarge his estate into a fee simple. n. 1. 4. When it was observed that the statute of uses transferred the actual possession, without entry, the idea of a lease and release was adopted. A bargain and sale for a year was made by the vendor, to the person to whom the lands were to be conveyed; by this a use was raised in the bargainee, without any 1 Inst. 271 b. enrolment, to which the statute transferred the pos- Heyward's session. Thus the bargainee became immediately Case, infra, capable of accepting a release of the freehold and reversion; and accordingly a release was made to him, dated the day next after the day of the date of the bargain and sale. All this was considered as equal to a feoffment. c. 19. Capias. 5. Fabian Philips says, this conveyance was at first Treat on only purposely contrived by Serjeant Moore, at the request of Lord Norris, to the end that some of his kindred or near relations should not take notice, by any search of public records, what conveyance or settlement he should make of his estate. 6. The validity of this conveyance was formerly much doubted. Mr. Noy was of opinion that it could 2 Mod. 252. not be supported without an actual entry by the bargainee. But it was resolved in 18 Ja. I., by the Chief Justices Montague and Howard, and Chief Baron Tanfield, that upon a deed of bargain and sale for Lutwich v. years of land, though the bargainee never entered, Mitton, if afterwards the bargainor makes a grant of the reversion, reciting the lease, to divers uses, it was a good conveyance of the reversion. And in a sub Cro. Ja. 604. Cro. Car. 110. Barker v. Keate, sequent case, where there was a bargain and sale for 2 Mod.249. years, followed by a release, judgement was given -"That the lease being within the statute of uses, there was no need of an actual entry, to make the lessee capable of the release; for by virtue of the statute he shall be adjudged to be in actual possession." 1 Freem.251. Barker v. 2 Mod. 252. 2 Lev. 108. 6 Mod. 44. Who may convey by. ante, c. 9. § 16. What may be 7. It is said by Lord Ch. J. North, that he had known it ruled several times, that a lease and release in the same deed was a good conveyance; for priority should be supposed. And the words demise, grant, and to farm let, for six months, reserving a peppercorn rent, have been held to amount to a good bargain and sale to ground a release. 8. The recital of a lease for a year, in a deed of release, is good evidence of such lease against the releasor, and all claiming under him; but not against strangers; without proving that there was such a deed, and that it was lost or destroyed. 9. Every person capable of being seised to the use of another may convey by lease and release; but neither the king, nor a queen regnant, can convey in this manner, nor can a corporation, for the reason already mentioned. 10. Every species of property that is capable of conveyed by. being conveyed to uses, may be the subject of a lease and release. Estates in Remainder and Reversion. Cases and Opinions, vol. 2. 144. 1 Inst. 270 a. 11. Not only estates in possession, but estates in remainder and reversion, may be conveyed by lease and release this point is fully proved by Mr. Booth in an opinion which has been printed. He admits Lord Coke's position that a release cannot work without a possession; but contends he only means that the estate, upon which the release is to work, must be a vested estate; for in the same folio Lard |