ASSIGN. MENT. Operative words. Operation of an assignment. assigned, and will not, therefore, in general, assist volunteers. But yet, as against executors, administrators, or heirs at law, the courts have established them though not made for a valuable, but only for a good consideration, as natural love and affection, and the advancement of children P. But no consideration is in general necessary to support the assignment of a lease, by tenant for years, because the tenure, attendance, and forfeiture incident to the assignee's estate, are alone, and independently of the rent reserved, if any, sufficient to vest an use in the assignee1; still, however, it appears to be proper to insert some valuable consideration, as well in order to support the assignment as a contract, should there be occasion to have recourse to that expedient, as to enable the assignee to maintain a possessory action, if necessary, which, as the assignment of itself transfers only the possession in law, he cannot do unless a valuable consideration be given'. The operative or transferring words, commonly made use of in a deed of assignment, are "bargain, sell, assign, transfer, and set over," which are sometimes also preceded by "give and grant," for the purpose of enabling the assignee to plead the deed as a gift or grant, which, under particular circumstances, may happen to be a convenience' (1). IV. OF THE EFFECT AND OPERATION OF AN THE effect of an assignment is a transfer of the right of 91 Mod. 263. pl. 7: Ibid.; 2 Rol. Abr. 781, See 2 Blac. Com. 441. (1) For the form of deeds of assignment, see 1 Bridgm. Conv. 89, 112; 2 Ibid. 28, 84, 134; Lil. 477, 507; Horsm. 129, 828; Bird's Assistant voc. ASSIGNMENT. signed, he is not however entirely, or in fact so possessed, as the assignor has still the actual (though a mere naked) possession, and the assignee a right of possession only. Upon which principle, it is held, that the assignee of a lessee is by an assignment of his estate discharged from the covenants in the original lease, even though he still continue in possession: for as after assignment nothing remains in him beyond a mere naked possession, without any right, there is no privity between him and the lessor to support an action of covenant. And though it was long conceived that the assignee of an assignee had, before actual entry, such a possession as to support an action on the covenants in the lease", yet a contrary doctrine seems now to be pretty well established*. ASSIGN MENT. CHAP. V. OF A DEFEASANCE. A DEFEASANCE, from the French word defaire, to undo, in its largest sense signifies a condition annexed to an estate, by non-performance of which the estate is made void; and sometimes the condition of an obligation annexed to it at the time of making; but it is more peculiarly and properly applied to such conditional instruments as are made in defeasance and avoidance of statutes and recognizances at the time of entering into them; and to such conditional instruments as are made in defeasance of statutes, obligations, and the like, after the time of their being entered into, and is defined by Sir Williain Blackstone, to be a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which, the estate then Smith, Ibid. 275. See Dougl. 461. "See Pilkington v. Shaller, 2 Vern. 374; and Sparks v. * See 2 Danv. Ab. 484; Dougl. 455. DEFEAS- DEFEAS- Of what a defeasance may be made. created, may be defeated or totally undone. A defeasance on bond, or recognizance, or judgment recovered, is also a condition, which, when performed, defeats or undoes it: and differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself the other is made between the same parties by a separate, and frequently a subsequent deed". By the common law, no secret defeasance or revocation was allowed of a solemn conveyance, perfected by livery of seisin, unless executed at the same time. But all inheritances executory, as rents, annuities, conditions, warranties, and the like, might at all times be annulled and discharged by a defeasance, made with the mutual consent of all those who were parties to the creation of them at the time, or at any time afterwards. And so of statutes recognizances, obligations, and the like; for it is a rule, that in all cases, where any executory thing is created by a deed, the same thing, by the consent of all persons who were parties to the creation of it, may be defeated and annulled; and therefore that warranties, recognizances, rent-charges, annuities, covenants, leases for years, uses at common law, and the like, may, by a defeasance made with the mutual consent of all those that were parties to the creation of it, by deed, be discharged and avoided; nil est tam conveniens naturali æquitati quam quod unumquodque dissolvi potest eo ligamine quo ligatur; and therefore, by such a defeasance, not only the covenant which creates a power of revocation, but the power itself, may be utterly defeated and avoided; but estates of inheritance, and other estates in tail or for life, executed by livery, &c. cannot be avoided by defeasance made after the time of their creation. But by another deed of defeasance, made at the same time, a feoffment, release, lease for life, or other executed thing, may be avoided, as well as if it were by condition within the same deed: thus, if a dis 2 Blac. Com. 327. b Ibid. 342; and see Shep. Touch. c. 22, p. 396. seisee release to the disseisor, though this release cannot be defeated by an indenture of defeasance made afterwards, yet it may be defeated by an indenture of defeasance made at the same time. Qua in continenti fiunt in esse videnture. And in this manner mortgages were in former times usually made, the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on re-payment of the money borrowed on a certain day; and this, when executed at the same time with the original feoffment, was by the ancient law considered as part of it; for which reason only was it indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But, as has been just intimated, things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment; and so also annuities, conditions, warranties, and the like), were always liable to be recalled by defeasances made subsequent to the time of the creation. But, to make a good defeasance, it is principally requisite: 1. That the defeasance be made eodem modo as that by which the thing to be defeated was created, that is to say, if the one were by deed, the other must be by deed also: for if an obligee by word only discharge the obligor, or grant not to sue him, this will not defeat the obligation; it must be by deed, therefore, as the former was. But whether the deed or defeasance be indented or poll is not materials. 2. That if it recite the statute or the obligation, it be done truly for if a defeasance be made of a statute, or an obligation, which is recited to be made the tenth day c Co. Lit. 236, 237; 1 Co. 111, 113; Plow. 137, 193. d Co. Lit. 236. Ib. 237; 2 Bl. Com. 327. 1 Co. 113. Barre, 95. DEFEAS ANCE. DEFEAS of May, which in truth bears date the first day of May, this defeasance is void. 3. That it be made between the same persons that were parties to the first deed, &c.: and therefore if A. be bound in an obligation to B. in 207. and B. make a defeasance to C. that if C. pays him 207. the obligation made by A. shall be void; this is no good defeasance, because it is not made between the same parties 1. And yet if a statute be made to the husband and wife, and the husband alone join in the making of a defeasance, this is a good defeasance*. 4. That it be made after the making of the recognizance, obligation, &c. and not before'; but though the date of the defeasance be before the date of the recognizance, &c. yet if it be delivered afterwards, it is good enough". 5. That it be made of a thing defeasible: for if a disseisee release his right to the terre-tenant, and after there is a defeasance made between them, that if the releasor shall pay 20l. to the releasee, the release shall be void, this is a void defeasance"; although a release may be avoided by a condition or defeasance made at the time of making of a release as well as a 'feoffment". Separate deeds of defeasance are now, however, in but little use, as it is more common, and in most cases preferable, to insert the conditions, or terms of defeasance, in the instrument itself, by which the agreement, or other obligation, is created; as by this means they become incapable of separation, and the conditional or defeasible deed cannot be fraudulently set up as an absolute or indefeasible one (1). (1) See the form of a deed of defeasance, 1 Bridgm. Conv. 52, 313; Horsm. 327, 332; Wilde's Sup. vol. i. No. lxxxii. p. 530. |