GRANT.

in implying a warranty in the creation, or assignment of a term, arises from implication only, that is, from the law's presuming, by the party's using the word "grant," that he intended to warrant the lands as a term. But his expressly treating the land in the deed as a fee-simple estate, and expressly conveying it as such, necessarily rebuts every implication of its being his intention or undertaking to convey it as a term of years".

In what has been said above, the grantor is considered as the real owner of the land, receiving the purchasemoney, or other consideration of the estate or interest parted with. In this case, independently of all construction of particular words, there is great reason to consider him bound to warranty of the property he parts with, as he receives the benefit of it. In the case of a trustee, this ground of raising or implying an obligation of warranty necessarily fails. Upon the whole, therefore, Mr. Butler concludes that it appears clear, that "whenever there is a deed, on the face of which the trustee is party, and conveys merely as trustee, there is no substantial objection to his conveying by the word "grant." If the lands are freehold, it is clear that no warranty or covenant is imported by it; if it happens that they are held for a term of years only, all implication of an intention or undertaking to convey them for the term, is necessarily rebutted by their being treated in the deed, and conveyed by the party, as a fee-simple estate; and if any such warranty or covenant would otherwise be implied, it would be restrained, by his covenant that he himself has done no act to encumber, to a warranty or covenant against his own acts. To obviate, however, every doubt which may be entertained on this ground, it is usual to make the trustee convey ❝ according to his estate, right, or interest, but not further or otherwise," or to express that he grants, &c. "not as warranting the title, but in order to pass or convey the

■ Co, Lit. 384, a. n. (1).

lands." Whenever the former words are inserted, care should be taken to make them referrible to the trustee only, and not to the owner of the fee; who, in express contradiction from the guarded mode of conveyance, applied to the trustee, should be made to "grant," &c. "fully and absolutely* (1).”

IV. OF THE OPERATION OF A DEED OF GRANT. THIS deed, as we have already noticed, operates not upon the possession as a deed of feoffment does, but upon the actual estate or right only of the party, hence it will pass no more than the grantor has a title to convey, and may therefore be made by a tenant for life, a lessee, &c. without prejudice to his own estate or to that of the reversioner'; the reason given for which is, that it being a private or secret conveyance, and not coram paribus like the feoffment, it would be dangerous that it should be suffered tortiously to disturb the rights of others.

GRANT,

CHAP. VI.

OF A LEASE.

A LEASE is that species of deed by which the possession of lands or tenements, corporeal or incorporeal, are granted to a person for life, years, or at will. The operative

*Co. Lit. 384, a. n. (1); but see 1 Pow. Wood, 502, n. (a); Shep. Prac. Couns. 1. See. Lit. s. 627; Co.

Lit. 251, b. 327, b.

z Gilb. Ten. 122.
a 2 Blac. Com. 317; Watk.
Princ. c. 4.

(1) See the form of deeds of grant adapted to the transfer of different kinds of incorporeal property, 1 Bridg. Conv. 77; 2 Ibid. 25, 181; Lil. Conv. 611, 773; Horsm. 384, 391; Mod. Prec. 3d edit. vol. iii.

LEASE,

LEASE. words of which are usually " demise, grant, and to farm (1), let," although, as has been before observed, any other words, plainly indicating the intent of the parties, that the one shall relinquish, and the other take the possession for a definite period, will amount to a lease". And if it be for a term not exceeding three years from the making, it may be by parol; but if it exceed that period, it must be in writing, and signed by the lessor, conformably to the statute of frauds. And if for life, it must not only be in writing, but be accompanied by livery of seisin, as in the creation of other freehold interests, unless it be created by way of use, or by devised.

But this species of instrument has already been so fully considered, under the head of ESTATES FOR YEARS, as well with respect to what things may be granted on lease*, who may make leases', as the other requisites to constitute a valid lease, that it would be improper to dwell upon it again under the present title.

↳ Ante, vol. ii. p. 596.

C

29 Car. 2, c. 3; and see vol. ii.

d See various forms of leases, Lil. 616; 1 Bridgm. 15, 164, 190, 259; Horsm.

395; Mod. Prec. 3d edit. vol. v.

See ante, vol. ii. c. 11,8.2. f Ibid. s. 3.

• Ibid. s. 4.

(1) Farm, or feorme, is an old Saxon word, signifying provisions. (Spelm. Gloss. 229.) And it came to be used instead of rent or render, because, anciently,the greaterpart 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 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 land so held upon farm or rent. 2 Blac. Com. 317.

CHAP. VII.

OF AN EXCHANGE.

IN treating of this deed, I shall consider,

I. THE NATURE OF AN EXCHANGE.

II. OF WHAT THINGS AN EXCHANGE MAY BE MADE.
III. OF THE REQUISITES TO PERFECT AN EXCHANGE.

I. OF THE NATURE OF AN EXCHANGE.

AN exchange is the mutual grant of equal interests, the one in consideration of and in exchange for the other; as, where one man is seised or possessed of land, &c. in feesimple, fee-tail, for life, or years, and another is, in like manner, seised or possessed of other lands, and they exchange their lands the one for the other. An exchange is therefore in the nature of a double grant; each party granting the land which is his to the other. This mode of conveyance, though not now very frequent, appears to have been formerly very common (1).

The operation of an exchange is not only to give the interest of the things exchanged, to either party, according to the agreement, but to alter the property, and therefore no livery of seisin (but entry only) is necessary to perfect the conveyance, even in exchanges of freehold; for each party stands in the place of the other, and occupies his right, and each of them has already had corporeal possession of his own land. And where the exchange is of lands or tenements of any estate of inheritance or freehold, it

(1) This may be inferred from the numerous precedents, inserted in the ancient collections. See Madox's Form. Angl. under the title "Exchange;" and see 1 Horsman, 362; 3 Wood, 243.

EXCHANGE.

EXCHANGE. has both a condition and a warranty in law incident and

annexed to it, by virtue of the word "exchange," i. e. a
condition to give a re-entry to either party upon all the
land given in exchange, if he be put out of all or part of
the land taken in exchange; and a warranty, to enable
him to vouch, and to recover over in value so much of his
own land again given in exchange, as shall be recovered
from him of the land taken in exchange, so that upon
every exchange, either party, if he be evicted, or lose by
action the land he takes in exchange, has a double re-
medy against the other; thus if A. exchange land with B.
and B. be put out of all or part of the land upon a title
paramount, by a recovery in a real action or otherwise; in
this
case, B. may either enter upon his own land again
which he gave in exchange; or else, if it be in an action
brought, he may vouch A. upon the warranty in law, and
shall recover as much in value against him of the land he
gave, as he has lost of the land he took in exchanged; all
of which is by reason of the reciprocal consideration, the
one land being given in exchange for the other. But this,
it is to be observed, is a special warranty (and not like
that on common recoveries); for upon voucher, by force of
it, he shall not recover other lands in value, but have back
the same which were by him given in exchange; for inas-
much as the mutual consideration is the cause of the war-
ranty, it shall extend only to the lands reciprocally given.
This warranty also extends to and binds only the parties
themselves, or such respectively between whom and the
exchangor there is a privity, and therefore none can vouch
by force of it but the parties to it, or their heirs, and not
an assignee.

And it will be the same if either party be evicted of a part only as of the whole of the lands taken in exchange. If then A. give three acres in exchange with B. for three or any other number of acres, and afterwards B. is evicted of one