acre only, yet the whole exchange shall be void; foras- EXCHANGE. much as all the three acres were given in exchange for the others, and the condition imposed in the exchange being entire, it is broken upon the eviction of any part of the land, and entry therefore given into the wholef: and it will be the same, and for the same reason, if a part of the estate or interest in the land fail; as an estate for life, the inheritance. or other part of An exchange, in the strict legal sense of the word, cannot be between more than two parties, the principles of it not being applicable to more than two distinct contracting parties, for want of the mutuality and reciprocity on which its operation so entirely depends. For, 1. The consideration of an exchange, and of the implied warranty incident to it, is the receiving something with warranty from the same person to whom something with warranty is given; but if there could be three distinct parties, each would give to one, and receive from another. 2. The implied condition of re-entry is, that re-entry may be made on him whose title fails; but if there could be three parties to an exchange, then each person would be liable to re-entry for the fault of another's title as well as his own. The number of individuals between whom the exchange is made, is, however, immaterial, provided that they are so conjoined in the mutuality of giving and receiving in exchange, as to constitute only two distinct relative parties. Thus, two or more joint-tenants may exchange with two or more tenants in common: for, in point of interest, the joint-tenants are the conveying party on one side, and the tenants in common on the other; and consequently, there is the same reciprocity as if the transaction was between two persons only h. 'Bustard's case, 4Co. 121. See the case of Eton College, in Wilson, vol. 2, part 3, p. 483; and Co. Lit. Co. Lit. 51, a, n. (1). VOL. IV EXCHANGE. Of what an exchange may be made. II. OF WHAT THINGS AN EXCHANGE MAY BE MADE. AN exchange may be made not only of things of the same nature, as a house for a house, &c. but of things of different natures, as of a house for land or rent; a temporal thing for a spiritual; a chamber in a house for common, or for a reversion, seigniory, or advowson; of land or rent for a right of land or release of right; of an advowson for land; of a rent for a way, or the like. Also, a seigniory by homage and fealty, or the like, which is not valuable, may be exchanged for land, rent, or any other such like thing which is soi. And although the lands exchanged lie in divers counties, the exchange will be good; with this difference, that if they lie in different counties, the exchange must, it is said, be by deed indented, as it must also, if the thing exchanged lie in grant, though in the same county'. So, it has been determined, that if one release his estövers in such a wood, and give the release in exchange for land; if a disseisee release his right to the disseisor in exchange for other land"; if I have a rent issuing out of the land of another, and I grant or release the same rent to him in exchange for other land; or if I release the rent to him in exchange for a way over his ground"; if I be seised of lands for which another hath a right of action, and I give to him other land for a release of his right; all these will be good exchanges. So, if two parsons of a church make an exchange of their benefices by words of exchange, and each of them resign his benefice into the hands of the bishop to the same intent, and the patrons present accordingly, and the presentations are by way of exchange, it will be a good exchange. i Perk. s. 258, 259, 260. * Ibid. s. 258, 261, 262, 263, 266; Lit. s. 62; Co. Lit. 51, 52. 1 Co. Lit. 51, b. m' Perk. s. 271, 282. Hence, it may be collected, 1. That the things ex- EXCHANGE. changed need not to be in esse at the time of the exchange made'; for a man may grant a rent de novo out of his land in exchange for a mano (1). 2. There needs no transmutation of possession; a release of rent, estovers or right of land, for land, being good. 3. The things exchanged need not to be of one nature, so that they concern lands or tenements; as land may be exchanged for rent, common, or any other inheritance which concerns lands or tenements. But annuities, and such like things, which charge the person only, and do not concern lands or tenements, or goods and chattels, cannot be exchanged for land'. III. OF THE REQUISITES TO THE VALIDITY OF AN THE requisites to an exchange are, 1. That the estates exchanged be equal in point of quantity or duration of interest: 2. That the word exchange be made use of in effecting it 3. That entry or claim be made upon the lands taken in exchange'. As to the first requisite, viz. that each party have the like kind of estate in the things exchanged; this is not to be understood that it is necessary that the estates should be of equal value, but equal in point of duration or quantity of interest or estate; as fee-simple for fee-simple, a lease of twenty years for a lease of twenty years, and so for other estates. For if the one grant that the other shall have his land in fee-simple for the land which he hath of the other in fee-tail; or that the one shall have in the one land a 'Co. super Lit. 50; Perk. But see contra, 9 Ed. 4, 21. s. 265. t Co. Lit. 50, b. (1) And yet if I grant to another the manor of A. for the manor of B. which he is to have after his father's death by descent, it seems this exchange is void. Equality of estate necessary in exchange. [BOOK III. PART I. EXCHANGE. fee-tail, and the other in the other land but an estate for life; or that the one shall have in the one land an estate in fee-tail general, and the other in the other land a fee-tail special; or that the one shall have in the one land an estate for life, and the other in the other land an estate for years only; these mutual conveyances cannot take effect as exchanges". And therefore if the lord release to his tenant his services in tail in exchange for other lands given to the lord in exchange in tail also, this exchange is void; for by this release made by the lord the services are gone for ever *. So if the tenant for his own life exchange with him that is tenant for life of another, this is not a good exchange. And by the same reason it should seem, if lessee for twenty years of his land, exchange with another for other land for forty years, this would not be a good exchange. Or if tenant for his own life exchange with him that is tenant in tail after possibility of issue extinct, this exchange is good. For in general the law looks upon an estate-tail after possibility of issue extinct, as equivalent to an estate for life only . Neither is it necessary that both estates be in possession; for one may grant an acre in possession in exchange for an acre in reversion, and this exchange is good. Nor, as has been before intimated, is it necessary that there be an equality in the value or quantity of the lands exchanged: for if the land of one of the parties be worth 100l. and the land of the other worth but 107. or if the land of one of the parties consist of one hundred acres, and the land of the other but of ten acres, yet if the estates given be equal in point of interest, the exchange is good. Neither is equality in the manner in which the estates are holden by either party material; EXCHANGE. for two joint-tenants, or the like, of land, may exchange them for lands holden by one person in the entirety, and they may take the lands exchanged to hold a moiety to one of them and a moiety to the other, or for other different estates than they had before. In every exchange it seems to be essential, that the word exchange" be used between the parties in making the transfer. As, "I grant to you white acre, to have and to hold to you and your heirs in exchange for black acre; and, in consideration hereof, you grant to me and my heirs black acrc in exchange for white acre:" for the word "exchange" is so individually requisite in this case, that it cannot be supplied by any other word, or circumlocution (unless in the case of an exchange of ecclesiastical preferment); neither will any averment, that it was in exchange, be admitted. And therefore, if A. by deed indented, give to B. an acre of land in fee-simple, or for life, and by the same deed B. give to A. another acre of land in the same manner, this will not enure as proper exchange, but as mutual conveyances; and if, therefore, in this case, there be no livery of seisin or other transmutation of possession, it is utterly void f. But an exchange may be made to take effect in futuro, as well as in præsenti; for if an exchange be made between me and another, that after the feast of Easter he shall have my manor of Dale in exchange for his manor of Sale, this is a good exchange. It is not necessary in an exchange, any estate, which either party is to have in the thing exchanged, should be mentioned, as in such case they will (the estate being freehold) each take an estate for life. But if an estate for life, or the like, be limited expressly to one, and no Co. Lit. 51; Perk. s. 280, 281, 289; Lit. s. 65. f Co. Lit. 50, 51; Perk. s. 252, 254; Eton College, Form of exchange. |