BARGAIN AND SALE. deed; and, as was before said, when two conveyances, one by the common law and one by statute concur, that by the common law shall be preferred, unless, on account of any mesne incumbrances created by the bargainor, it will be more for his advantage to take by the bargain and sale; in which case he shall be construed so to take, notwithstanding the fine or recovery'. And upon the execution of the deed, the bargainee hath immediately so far actual possession of the land that he is a good tenant to the præcipe for suffering a recovery, and may surrender, assign, alien, release, &c. before enrolment. And so if he die, his wife shall have dower out of the land, provided the deed be afterwards duly enrolled'. dent But a bargain and sale, it is to be observed, operates merely upon the estate which the bargainor happens to have actually in him, and may lawfully convey, at the time of executing the deed. It therefore neither effects a discontinuance", destroys a contingent remainder depenupon a particular estate, nor creates a forfeiture ". If, therefore, a tenant in tail convey his estate by bargain and sale to a purchaser in fee, the bargainee will have only a base fee, determinable upon the death of tenant in tail by the entry of the issue, who will not be put to his formedon on the death of his ancestor, but may enter and bring an ejectment; because the bargain and sale worked not a discontinuance of the estate tail. So if tenant for life, with contingent remainders depending thereon, convey his estate to another in fee by bargain and sale, the bargainee will only take an estate for life, and the contingent remainder will not be destroyed. By the express provision of stat. 6 Anne, c. 35, s. 30, it is declared, that in all deeds of bargain and sale, enrolled in pursuance of that act, whereby any estate of inheritance in fee-simple is limited to the bargainee, and his heirs, the words "grant, bargain and sell," shall amount to express covenants with the bargainee, his heirs and assigns, by the bargainor, for himself, his heirs, executors and administrators, that the bargainor is seised of an indefeasible estate in fee-simple, free from incumbrances, (except rents and service due to the lord of the fee), and also for quiet enjoyment against the bargainor, and all claiming under him; and for further assurance, unless the same be restrained by express words contained in such deed. And the same operation has been assigned by a late very able conveyancer to bargains and sale, in general. But as the provisions of the act of 6 Anne appear to extend only to deeds of bargain and sale of lands in the East Riding of York and Kingston-upon-Hull, there does not seem to be any foundation for giving the same forcible operation to those enrolled under the prior act of 27 Hen. 8. And by 33 Geo. 2, c. 30, s. 10, (an act for widening certain streets in London,) it is enacted, that bargains and sales of lands, &c. purchased under that act shall, if enrolled in the hustings of the city of London, have the same force and operation as if fines or recoveries had been levied of them. Upon the construction of the statute of enrolments it has been held, that as at common law the use passed from the delivery or date of the deed, and by the statute of uses, the possession passed as the party had the use at the time of the delivery; if the circumstances, added by the statute of enrolment are observed, it has the same effect which it Hard. 416; Gilb. Uses, 140; Fearne, 472. b See 2 Pow. Wood, 44, n. (a), (b). BARGAIN AND SALE. BARGAIN AND SALE. had before at common law, to wit, to raise the uses from the delivery; for the words of the statute are only to add some things, and not to abolish or set aside the force it had formerlyc. And so if two deeds of bargain and sale be made of the same lands to two several persons, and the last deed be first enrolled, yet if afterwards the first deed is also enrolled within the six months, the first buyer shall have the land; for when the deed is enrolled, the bargainee is seised from the delivering of the deed, to which time the enrolment will related. And if a man bargain and sell his manor, to which there is an advowson appendant, the bargainee can make no title to present before enrolment. For as the manor cannot pass till enrolment, neither can that which is appendant to it'. Nor, it is said, can a bargainee make a lease before enrolment; and though the indenture be afterwards enrolled, yet the lease is void, and the relation of the enrolment shall not make it good. So if a man make a lease for life, reserving rent, with clause of re-entry, and then bargains and sells the reversion, the bargainee demands the rent, and the lessee refuses, and then the deed is enrolled, the bargainee cannot enter for the forfeiture; for till enrolment he is not grantee of the reversion within the statute capable of the duty, and consequently at the day could make no legal demand, which was precedently necessary to his entry. And if a man bargains and sells lands by indenture, and then takes a wife and dies, and afterwards the deed is enrolled, the wife shall not be endowed'. But if lands are bargained and sold, and a stranger enters, and then the deed is enrolled, and the bargainee dies, his wife shall be endowed. Though the bargain and sale be not enrolled at all, yet all distinct and independent covenants, to pay money, or the like, will notwithstanding be binding upon the party; but otherwise of relative and dependent covenants, which run with the land, as for quiet enjoyment, or the like'. Bargains and sales, though publicly acknowledged and enrolled, have not the authority of records, for they are notwithstanding but private contracts, and to be considered as suchm BARGAIN AND SALE. CHAP. III. OF A LEASE AND RELEASE. THE ancient mode of conveying land from one man to LEASE AND another, we have seen, was by feoffment; but the necessity of livery of seisin, to perfect the possession of the feoffee, being found in many cases very troublesome," and begetting many nice questions," put lawyers upon devising some other mode of conveyance, which might be as effectual, without requiring the ceremony of livery. And they at length hit upon that which is now known by the above i 569. 1 And. 161; Cro. Car. k 1 Salk. 199; 1 Lord Raym. 388; Moor, 35, pl. 115; 2 Rol. Abr. 786, M. RELEASE RELEASE. LEASE AND denomination (1), which, though its efficacy was at first greatly questioned, particularly by Mr. Noy, attorneygeneral to Charles the First, it has now almost wholly superseded the conveyance by feoffment; and from long use, if not upon principle, is become too firmly established to admit of its validity being reasonably questioned". ! But though this mode of conveyance is now become the most common assurance of land, it will not, it is presumed, after the consideration which has already been given to the two species of deeds of which it is composed, namely, the bargain and sale under the statute of uses, and that species of release at common law which enures by way of enlargement, be deemed necessary that I should detain the reader longer upon it than may be sufficient to explain the manner in which it is contrived, and the reason of its operation. The nature of the conveyance by lease and release is very perspicuously explained by Mr. Butler, in his incomparable annotations upon the first Institute of Lord Coke, and also by Mr. Booth, in an elaborate opinion upon a case which came before him in his practice, and has since been published', to whose remarks the student is to consider himself much indebted for the observations with which he is here presented. * See 2 Mod. 252. See ante, chap. ii. d Ibid. chap. i. • See Co. Lit. 271,b,n.(1). f See 2 Ca. Op. 288. (1) This conveyance is said to have been invented by Sir Francis Moor, (see 2 Mod. 252; 2 Salk. 678, pl. 5; 2 Ld. Raym. 798); and the occasion to which it was first applied, to have been on the settlement of the estates of Lord Norris, for the purpose of concealing from his kindred the mode in which he had settled his property. See Phil. Writ of Cap. 19. |