RELEASE Release of pus sibilities. mony, which is a separate maintenance, and not in the power of her husband'. IV. WHAT MAY BE THE SUBJECT OF A RELEASE. It was an established maxim of the common law, that a mere possibility, right, title, or any other estate in the land or thing that was not in possession or vested in right, could not be released to a stranger, because a release supposes a right in being, and it was thought to countenance maintenance, and multiply contentions and suits, to transfer choses in action, possibilities and contingent interests. Hence it is held, that an heir at law cannot release to his father's disseisor in the life-time of the father, for the heirship of the heir is a contingent thing, for he may die in the life-time of the father, or the father may alien the lands; and hence, therefore, such a release would be void, and the son might enter upon the father's death, notwithstanding his released: and though the words " qua quovis modo in futuro habere potero" are inserted in the release, it will make no difference; but if the heir releases with warranty, it bars him when the right descends, for the warranty being a covenant for the defence of lands by a man's own act, is made equal to a feudal contract, and therefore repels the party or his heirs from claiming it, since he is bound to defend it to another. So if the conusee of a statute release to the conusor all his right to the land, yet he may afterwards sue out execution, for he has no right to the land, but only a possibility. So if a creditor release to his debtor all the right and title which he hath to his lands, and afterwards gets judgment against him, he may extend a moiety of the same land, for he had no right to the land at the time of the release, and the land is not bound but in respect to the person". So if the plaintiff release all demands to the bail in the King's Bench, and afterwards judgment be given against the principal, execution may be sued against the bail, for that at the time of the release there was only a possibility of the bail becoming chargeable. And where there was a lease to the husband and wife for life, the remainder to the survivor of them for twentyone years, and the husband granted it over; though the husband survived, the grant was held void because it was contingent*. And if the next presentation to a church be granted to A. and B. and, living the incumbent, A. release all his estate, title and interest to B. this release is void, it being of a chose in action; but it would have been otherwise had the release been made after the avoidance, at which time the interest would have been vested in A'. And for these reasons it was held, at common law, that if a woman before marriage had accepted of a jointure in bar and satisfaction of dower, this would not have bound her, because at the time she had no right to dower". And in the case of Theobald v. Duffay", it was determined, that a possibility of a term is assignable for a good consideration. But it is laid down in Hoe's case, that a duty uncertain at first, which upon a condition precedent is to be made certain afterwards, is but a possibility, which cannot be released; as a nomine pana waiting on a rent, which RELEASE. RELEASE. cannot be released till the rent is behind, for it is the nonpayment of the rent which makes the nomine pœnæ a duty”. So, if a man covenants to pay 10l. on the birth of a child, the covenantor cannot be released of the 107. it resting merely in contingency, whether such child will ever be born or not. So, if an award be, that upon the plaintiff's delivering the defendant by a certain day a load of hay, the defendant shall pay him 107; in this case the 107. cannot be released before the day, for it rests merely in possibility and contingency whether the money shall ever be paid, for it becomes a duty on the delivery of the hay only, and not before". It is nevertheless to be observed, that although, for the reason before given, mere possibilities cannot be released to strangers, yet rights, titles and actions, and other possibilities may be released to the terretenant himself; for` this has no tendency to create, but to prevent contention and suits, and secure repose and quiet; and therefore, says Coke', a right or title to an estate of freehold, be it in præsenti or futuro, may be released, and that in five manner of ways; viz. 1. To the tenant of the freehold in fact or in law, and without there being any privity: 2. To the person in remainder: 3. To the person seised in reversion, without privity: 4. To a person who has right in respect of privity only, (as if tenant be disseised, the lord may release his services, in respect of the privity and right, without any estate): 5. In respect of privity only without right, (as if tenant in tail enfeoff in fee; although the donee after the feoffment has no right, yet there being a privity between them, the donor may release to him the rent and all services, saving fealty). Bridges v. Enion, Yelv. 215; Brownl. 116. 192. Neale v. Sheffield, Yelv. Briscot v. Aier, Yelv. 215; and see 2 Rol. Abr. 407, 408. 10 Rep. 48, a. V. HOW A RELEASE SHALL BE CONSTRUED. RELEASES were formerly construed with great nicety and strictness, and being considered as the deed or grant of the releasing party, were, according to the rule of law that every deed shall be taken strongest against himself, taken most strongly against the releasor. They have since, however, received the same interpretation as other deeds and contracts between parties, and are equally favoured by the Judges, as tending to repose and quietness". Hence it hath been established as a general rule in the construction of releases, that though where there are general words only in a release, they shall be taken most strongly against the releasor; yet, where there is a particular recital in a deed, and then general words follow, the general words shall be qualified by the particular recital, and the intention of the parties be pursued *. Thus, where in debt upon an obligation the defendant pleaded a release of all errors, and all actions, suits and writs of error whatsoever; it was adjudged that the release extended only to writs of error, and did not release the obligation, though the word "actions," had it stood singly, would have done it ". So a release made in performance of an award, was held not to discharge a growing rent, though the release contained general words, extending to it, for " that it was not the intention of the parties"." And it seems that a general release of all actions, &c. from the beginning of the world up to the day of the date of the said release, will not include any cause of action t 289. 22 Dyer, 56, 57, a; Plow. Hetl. 15; 8 Co. 148; Show. 154. * Hob. 74; Mod. 99; Ld. Raym. 235, 663; sed vide Raym. 399. Y Abree v. Page, Hetl. 9, Hen v. Hanson, Lev. 99; RELEASE. RELEASE. Where releases require words of inheritance. arising upon the day on which the release is dated, for that day is not included *. Releases also, like other conveyances, regularly require words of inheritance; for as in feoffments there was required the word heirs to distinguish the feud or fee from such estates as were not hereditary, so it must be inserted in releases which come in the place of feoffments, in cases where the possession was previously in the releasee. If, therefore, a lessor release to his lessee for years, without saying, to him and his heirs, such lessee hath only an estate for life. So, if a release be made to tenant by statute staple, or merchant, or elegit, by him in the, reversion, of all his right in the land; by this a freehold only passes for the life of the releasee, it being the greatest estate that can pass without apt words of inheritanced. And if a lessor release to his lessee pur autre vie, as if a man make a lease to A. during the life of B. and then releases all his estate to A. this will give an estate to A. for his own life and not for the life of B. only, because an estate for a man's own life is considered in law as a greater estate than that for the life of another". But in releases that enure by way of mitter le estate, the word "heirs" is not requisite; as, where there are two coparceners, and one of them releases to the other, this gives a fee without the word "heirs," because it hath a necessary relation to the estate of which the other was seised. So, if there be two-joint-tenants, and one release to the other, this passeth a fee without the word "heirs," because it refers to the whole fee, which they jointly took and are possessed of by force of the first conveyance. But tenants in common have distinct freehold, and cannot |