ance: (c) for each party stands in the place of the other and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety. (d) (26) And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own. (e) For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other's title; he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges. (f) (27) 6. A partition is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the *lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity [*234-] of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates which they are to take and enjoy separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery in seisin. (g) And the statutes of 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32, made no alteration in this point. But the statute of frauds, 20 Car. II, c. 2, hath now abolished this distinction, and made a deed in all cases necessary. (28) These are the several species of primary or original conveyances. Those which remain are of the secondary or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, 'restore, or transfer the interest granted by such original conveyance. As 7. Releases; which are a discharge or a conveyance of a man's right in lands or tenements, to another that hath some former estate in possession. The words generally used therein are "remised, released, and forever quit-claimed." (h) And these releases may enure either, 1. By way of enlarging an estate, or enlarger l'estate: as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. (1) But in this case the relessee must be in possession (29) of some estate, for the release to work upon; for if there be lessee for years, and before he enters and is in possession, the lessor releases to him (c) Litt. ? 62. (e). Perk. 288. (h) Litt. 445. (Page 300. (i) Ibid. 465. (26) But this would not be so if exchange were made by lease and release, in which case the statute would excute the possession instantly upon the execution of the deeds. Neither would entry be essential if deeds of bargain and sale were employed. (27) By statute 8 and 9 Vic. c. 106, an exchange of any hereditaments, made by deed executed after the first day of October, 1845, shall not imply any condition in law. The general enclosure act of 8 and 9 Vic. c. 118, contains provisions under which exchanges of lands may be effected under the order of the enclosure commissioners, on the application in writing of the persons interested, and the land on each side taken in exchange remains and enures to the same uses, trusts, intents and purposes, and is subject to the same charges as the land given in exchange. And the order of exchange is not to be impeached by reason of any infirmity of estate of the persons on whose application it shall be made. (28) See also, statute 8 and 9 Vic. 106. Partition may also be made under the general enclosure act of 8 and 9 Vic. 118, in the same manner as exchanges. In the United States it is commonly made by mutual deed of quit-claim and release. (29) [A virtual possession will suffice, if the releasee has an estate actually vested in him at the time of the release, which would be capable of enlargement by such release if he had the actual possession. Thus, if a tenant for twenty years makes a lease to another for five years, who enters, a release to the first lessee is good, for the possession of his lessee was his possession. So, if a man makes a lease for years, remainder for years, and the first lessee enters, a release to the person in remainder for years is good, to enlarge his estate. Mr. Hargrave's note (3) to Co. Litt. 270, a] VOL. I.-69 545 all his right in the reversion, such release is void for want of possession in the relessee. (k) 2. By way of passing an estate, or mitter l'estate: (30) as when one [*325] of two coparceners releaseth all her *right to the other, this passeth the fee-simple of the whole. (1) And in both these cases there must be a privity of estate between the relessor and relessee; (m) that is, one of their estates must be so related to the other, as to make but one of the same estate in law. 3. By way of passing a right (31) or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right, hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful. (n) (32) 4. By way of extinguishment: as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release to A; this extinguishes my right to the reversion, and shall enure to the advantage of B's remainder as well as of A's particular estate. (0) 5. By way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion; which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee. (p) And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already. 8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines it (q) to be a conveyance of an estate or right in esse, whereby a voidable (33) estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these, "have given, granted, ratified, approved and confirmed." (r) An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term: here the lease for years is voidable by him in reversion; yet, if he *hath confirmed the [*326] estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure. (s) The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement. 9. A surrender, sursumredditio, or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate descending upon the less, a surrender is the falling of a less estate into a greater. It is defined, (t) a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words, "hath surren (30) [If one joint-tenant assign to the other, it operates as a release, and must be so pleaded. 2 Cruise, 527.] (31) [There must be a privity of estate between the relessor and the relessee in the first species of release mentioned, see ante; but in this release per mitter le droit, there is not or cannot be any such privity: Co. Litt. 274, a. n. 1; nor is there any occasion for words of inheritance. Litt. 470, and Co. Litt. 273.] (32) [No privity is necessary when a release of a right is made to one who hath an estate of freehold, in deed or in law; but a release cannot enure by way of passing a right, unless it is made to one having a fee-simple; for the person to whom a right is passed must have the whole right; to a person not having the fee, therefore, a release of right operates, as it were, by extinguishment in respect of him that made the release; which extinguishment shall enure to him in remainder, though the right is not extinct in deed. 1 Instit. 275, a, 279, b. If a release of all actions be made to a tenant for life, the person in remainder, after the death of the tenant for life, shall have no benefit from this release. 1 Instit. 275, b, 285, b; Edward Altham's Case, 8 Rep. 302; Lampet's Case, 10 id. 51.] (33) [The distinction between voidable and void must not be lost sight of here, for it has no operation whatever upon a void estate. Gilb. Ten. 75.] dered, granted, and yielded up." (34) The surrenderor must be in possession ; (u) and the surrenderee must have a higher estate, in which the estate surrendered may merge; therefore tenant for life cannot surrender to him in remainder for years. (w) In a surrender there is no occasion for livery of seisin; (x) for there is a privity of estate between the surrenderor and the surrenderee; the one's particular estate and the other's remainder are one and the same estate and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes: since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate: and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory. (y) 10. An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents [*327] and purposes in the place of the assignor. (35) 11. A defeazance is 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 created may be defeated (z) or totally undone. And in (w) Perk. § 589. (a) Co. Litt. 50. (u) Ibid. 338. (y) Litt. 460. (34) [But these words are not essential to a surrender. 1 Wils. 127; Cro. Jac. 169; 2 Wils. 26; 5 Moo. and P. 800. A surrender must be of the whole estate or it will not operate as such. Touchst. 308; Hard. 417. It cannot be made to take effect in futuro. 1 Mee. and W. 50; 3 id. 328. But it may be made upon a condition precedent. 12 East, 134; 1 Mee. and W. 676; Perk. s. 624.] The surrender here described is one by deed, but there may be a surrender in law without any deed. As where the lessee, before the expiration of his term, delivered up possession to the lessor who leased the premises to another. Randall v. Rich, 11 Mass. 494; Hesaeltime v. Seavey, 16 Me. 212; Dodd v. Acklom, 6 M. and G. 673. So if without a reletting the landlord accepts possession of the premises. Elliott v. Aiken, 45 N. H. 36: Matthew v. Tabener, 39 Mo. 115. So where the lessee gave to the lessor a lease of the same psemises, in terms like his own, it was held a surrender, and that the term was merged. Shepard v. Spalding, 4 Met. 416. And the same has been held where the tenant left the premises on a notice from the landlord to quit for non-payment of rent, and the latter went into possession. Patchin v. Dickerman, 31 Vt. 666; and see 1 Washb. Real. Prop. 350, et seq. Surrenders in England, when in writing, are now by statute 8 and 9 Vic. 106 required to be by deed. And by statute 8 and 9 Vic. c. 112, when the purpose for which a term for years has been created is satisfied, the term itself ceases to exist. (35) [This is not universally true; for there is a variety of distinctions when the assignee is bound by the covenants of the assignor, and when he is not. The general rule is, that he is bound by all covenants which run with the land; but not by collateral covenants which do not run with the land. As if a lessee covenants for himself, executors, and administrators, concerning a thing not in existence, as to build a wall upon the premises, the assignee will not be bound; but the assignee will be bound, if the lessee has covenanted for himself and assigns. Where the lessee covenants for himself, his executors and administrators, to reside upon the premises, this covenant binds his assignee, for it runs with, or is appurtenant to, the thing demised. 2 Hen. Bl. 133. The assignee in no case is bound by the covenant of the lessee, to build a house for the lessor any where off the premises, or to pay money to a stranger. 5 Co. 16. The assignee is not bound by a covenant broken before assignment. 3 Burr. 1271; see Com. Dig. Covenant. But if an underlease is made, even for a day less than the whole term, the under-lessee is not liable for rent or covenants to the original lessee, like an assignee of the whole term. Dougl. 183, 56. An assignee is liable for rent only whilst he continues in possession under the assignment. And he is held not to be guilty of a fraud, if he assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. 1 B. and P. 21. The same principle prevails in equity. See 2 Bridg. Eq. Dig. 138; 1 Vern. 87; 2 id. 103; 8 Ves. 95; 1 Sch. and Lefroy, 310. But the assignee's liability commences upon acceptance of the lease, though he never enter. 1 B. and P. 238.] As to the difference between an assignment and a sub-letting, see in general, 1 Washb. Real Prop. 333, et seq. A covenant against an assignment is not broken by a sub-letting, and e converso. Parker v. Copland, 4 Mich. 660; Lynde v. Hough, 27 Barb. 415. this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the. money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law; (a) and therefore only 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 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 defeazances made subsequent to the time of their creation. (b) II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses. Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum than the usus fractus of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance. (c)-But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he *should convey it or dispose [*328] of the profits at the will of another. And it was the business of a particular magistrate, the prætor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence. (d) So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice which occasioned that known division of rights by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request. (e) In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits. (f) As, if a feoffment was made to A and his heirs, to the use of (or in trust for) B and his heirs; here at the common law A, the terretenant, had the legal property and possession of the land, but B, the cestuy que use, was in conscience and equity to have the profits and disposal of it. This notion was transplanted into England from the civil law, about the close of the reign of Edward III, (g) by means of the foreign ecclesiasties; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses: (h) which the clerical chancellors of those times held to be fidie-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so [*329] was *possessed of the use only, such use was devisable by will. But we have seen (1) how this evasion was crushed in its infancy, by statute 15 Ric. II, c. 5, with respect to religious houses. Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France, and the sub (a) Co. Litt. 236. (b) Ibid. 237. Bacon on Uses, 8vo. 306. III, c. 6. 1 Ric. II, c. 9. sequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Edw. IV, (before whose time, Lord Bacon remarks, (4) there are not six cases to be found relating to the doctrine of uses), the courts of equity began to reduce them to something of a regular system. Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI, with respect to the heir; (1) ` and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use. (m) But a purchaser for a valuable consideration without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king nor queen, on account of their dignity royal, (n) nor any corporation *aggregate, on account of its limited capacity, (o) could be seised to any use but their own; that is, they might hold the [ *330] lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use: (p) because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir. On the other hand, the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quæ ipso usu consumuntur: (q) or whereof the seisin could not be instantly given. (r) 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself, (s) unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions. (t) (36) But if either a good or valuable consideration appears, equity will immediately raise a use correspondent to such consideration. (u) 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession; (w) for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties, (x) or be devised by last will and testament; (y) for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; *and, as the intention of the parties was the leading principle in this species [ *331] (k) On Uses, 313. (2) Keilw. 42. Year-book, 22 Edw. IV, 6. (m) Ibid. 46. Bacon on Uses, 312. (n) Bro. Abr. tit. Feoffm. al uses, 31. Bacon of uses, 346, 347. (o) Bro, Abr. tit. Feoffm. al uses, 40. Bacon, 347. (p) 1 Rep. 122. (g) 1 Jon. 127. (r) Cro. Eliz. 401. (8) See page 296. (t) 1 And. 37. (u) Moor. 684. (w) 2 Roll. Abr. 780. (x) Bacon on Uses, 312. (y) Ibid. 308. (36) [In the second section of the third chapter of Gilbert on Uses, p. 222, the law is in substance thus laid down. If a feoffment be made, or a fine be levied, or recovery be suffered, without consideration, and no uses be expressed, the use results to the feoffor and his heirs. But if any uses be expressed, it shall be to those uses, though no consideration be had; and herein is the difference between raising uses by fine, feoffinent, or other conveyance operating by transmutation of possession, and uses raised by covenant: for, upon the first, if no uses were expressed, it is equity that assigns the feoffor to have the resulting use; by the law, the feoffor has parted with all his interest: see Cave v. Holford, 3 Ves. 667; but where he expresses uses, there can be no equity in giving him the use against his own will. On the other hand, in case of a covenant there can be no use without a consideration; for the covenantee in such case can have no right by law, and there is no reason why equity should give him the use. And see Calthrop's Case, Moor, 101; Stephen's Case, 1 Leon. 138; Mildmay's Case, 1 Rep. 176; 2 Roll's Ab. 790.] |