BOOK III. PART II. OF DERIVATIVE CONVEYANCES. 203 CHAP. I. OF A RELEASE. HAVING in the preceding book finished our inquiries, RELEASE. concerning the several species of PRIMARY or ORIGINAL conveyances, we now come to those which are of a SECONDARY OF DERIVATIVE kind; which pre-suppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore or transfer the interests granted by such original conveyance". These are, 1st. Deeds of release; 2d. Confirmation; 3d. Surrender; 4th. Assignment; and 5th. Defeasance. As the first of these assurances is one of those which compose the very common species of conveyance, known by the appellation of LEASE and RELEASE, and upon which the operation of that assurance greatly depends, it will be proper to enter pretty fully into the nature of a release; I shall therefore inquire, I. OF THE GENERAL NATURE OF A RELEASE. III. WHAT PERSONS ARE CAPABLE OF GIVING A IV. WHAT MAY BE THE SUBJECT OF A RELEASE. V. HOW A RELEASE SHALL BE CONSTRUED. a See 2 Blac. Com. 324. RELEASE. I. OF THE GENERAL NATURE OF A RELEASE. Ar common law, lands, we have seen, could be transferred from one person to another only by feoffment with livery of seisin producing a notoriety of the transmutation of possession: there was a similar notoriety in the change of possession where a person disseised another, but that was only a tortious possession, liable to be defeated by the disseisee, who had the right: to complete the title of the disseisor, where the party disseised was willing to transfer his right to the disseisor, it was necessary that he should acquire the right; this could not be done by a feoffment, as that was a transfer of the possession, but this the disseisor already had; it was therefore effected by a release, which. is the giving or discharging of a right of action which a man has against another, or the conveyance or discharge of a man's interest or right in lands or tenements to another, who has either the possession thereof, or some estate therein ". Releases are either express, or in deed, or by operation of law; and may be made of lands and tenements; goods and chattels actions real, personal and mixt, or other rights or interests, varying only according to the nature of the case, and the purposes which the release is intended to effect". The proper words for creating an express release are, "remise, release, and quit-claim (1)," which have all the same signification; and Lord Coke adds two others, viz. ❝renounced and acquitted." But any other words b 2 Blac. Com. 324; Shep. • Co. Lit. 264, a. Prac. Couns. 2; Gilb. Ten. 53. d See Hob. 163; 4 Co. 63; 8 Ibid. 152; Co. Lit. 286. (1) The word "release," is, says Lit. s. 508, and Co. Lit. 291, b. the strongest word in the law, and will discharge all sorts of actions, rights and titles, conditions before and after breach, executions, appeals, rents of all kinds, covenants, contracts, recognizances, statutes, &c. and expressions of a like import will amount to a re- RELEASE. lease. An express release must regularly be in writing, and if the estate released arose by deed, this writing must also be by deed, according to the rule of law, that eodum modo quo oritur eodum modo dissolvitur; and so a duty arising by record must be discharged by matter of record, &c.f Releases by operation of law may be where an obligor of releases by operation of makes the obligee his executor, and he accepts of the exe- law. cutorship; this is a release in law of the action: so if the obligee makes the obligor his executor, this is a release in law, because it is the proper act of the obligee, who thereby makes the executor the only person capable to receive and pay, &c. h And what is here observed respecting obligors and obligees, holds equally between all other creditors and debtors, but it must be attended with the following observations: a debt is only a right to recover the amount of the debt by way of action; and, as an executor cannot maintain an action against himself, or against a co-executor, the testator, by appointing the debtor an executor of his will, discharges the action, and consequently discharges the debt. Still, however, when the creditor makes the debtor his executor, it is to be considered but as a specific bequest or legacy, devised to the debtor to pay the debt; and therefore, like other legacies, it is not to be paid or retained till the debts are satisfied; and if there are not assets for the payment of the debts, the executor is answerable for it to the creditors. In this case, it is the same whether the executor accepts or refuses the executorship. On the other hand, if the debtor makes the creditor his executor, and the creditor accepts the executorship, if there are assets, he may Lit. s. 445; Co. Lit. 264. b; and see Plow. 140; 1 Sid. 265; Cro. Jac. 696; 9 Co. 52; Show. 331. f Co. Lit. 264, b; 2 Rol. Abr. 408. Co. Lit. 264; Plow. 184, 185; Hutt. 128. 8 Co. 136; 2 Salk. 306. [BOOK III. PART II. RELEASE. retain his debt out of the assets, against the creditors, in equal degree with himself; but if there are not assets, he may sue the heir, where the heir is bound. And therefore, though it is said by Chief Justice Holt, that a creditor making his debtor executor does not operate as a legacy, or amount to a bequest to him of the sum due, but to a payment and release; the meaning of it is, that such executor having assets sufficient to pay the debts and legacies of the testator, is discharged of the debt due from himself, as he by law is entitled to all the residue of the testator's personal estate after payment of debts and legacies; but it hath been adjudged, that in case of a deficiency of assets either for the payment of debts or legacies, such debt is to be deemed assets, and the executor accountable therewith as so much of the testator's personal estate *. And by an intermarriage all contracts between the husband and wife for debts due in præsenti or in futuro, or upon a contingency which may become due during the coverture, are released and extinct, because the husband and wife make but one person in law; and it was holden by Justice Gould, that if there was an express agreement that they should not be released by the intermarriage, it would be void, as inconsistent with the state of matrimony'. But it seems the better opinion, and founded on great variety of cases, that promises, covenants, and agreements for the performance of a thing which is not to happen during the coverture, as payment of money after the husband's decease, are not released by the marriage", for such covenant or promise by the husband is only a future debt on a contingency which cannot happen during the marriage, and that is precedent to the debt; but a bonddebt is a present debt, and the condition is not precedent, but subsequent. And it seems now to be settled, that such i Wankford v. Wankford, 1 Salk. 299. k 2 Salk. 304, 306; Cro. Car. 373. 1 Co. Lit. 264; 8 Co. 136; Dyer, 140. m See Hob. 216, 227; 2 Rol. Abr. 407; 2 Vern. 481. a bond may be enforced even at law against the heirs of RELEASE. the husband". II. OF THE DIFFERENT KINDS OF RELEASES WITH RELEASES, says Lord Coke, are of four different kinds, i.e. 1st, those which enure by way of mitter le estate, or passing an estate; 2d, by way of mitter le droit, or passing a right; 3d, by way of creation or enlargement of an estate; 4th, by way of extinguishment; and Sir William Blackstone adds a 5th, viz. by way of entry and feoffment". J 1st, Of releases enuring by way of mitter or passing an estate. 'Where two or more become seised of the same estate by a joint title, as by'a contract or descent, as joint-tenants or coparceners, and one of them releases his right to the other, such release is said to enure by way of mitter le estate; for when two several persons came in by the same feudal contract, one of them might discharge to the other the benefit of such feudal contract by a release, because no notoriety was needful, since there was a sufficient notoriety in the prior feudal contract; thus, two coparceners come în to one entire feud, descending from their father, and therefore they may release to each other without any notoriety by "feoffment; because they take by reason of the former contract and descent to them, which establishes them in the possession without any notoriety; but since coparceners transmit distinct estates 'to "their children, they may also pass such estates by feoffment; for they have in respect of the descending line distinct estates, which they may pass by a distinct feoffment; but jointtenants can only pass the estate by release, and not by feoffment, properly speaking, for they are in solely by the 4 2 Com. 325. Release for passing an estate. |