- rasure, &c., as above stated, requires some little explanation, because the later cases go to show that an alteration, if nothing appears to the contrary, will be presumed to have been made at or before execution of the instrument; for the/ law will not infer fraud or wrong (a). If the alteration be immaterial, though after execution, by whomsoever made it would seem, it will not vitiate and for this reason, it is better never to absolutely erase, but to strike through with a pen, leaving it to be seen what the original matter was, and interline the required alteration :'

or destruction.

2. By breaking off or defacing the seal. 3. By delivering By cancelling it up to be cancelled.

'The absence of proper appreciation of the two latter instances of avoiding a deed has led to what may be sometimes

a conveyance

the estate.

a source of great difficulty (b), viz., the supposition that the destruction of a conveyance with the assent of the grantee Destruction of will have the effect of a reconveyance to the grantor in such will not revest conveyance, and revest in him the estate which had passed by its execution and delivery; this would be a singular way of defeating the Statute of Frauds. What is meant by the two latter instances is, that the tearing off the seal, or cancelling the deed, will avoid the deed so far as regards executory contracts or obligations arising out of it: such a covenant in an indenture, or a bond, could not be enforced after destruction with intent by the covenantee, or obligee, to cancel the obligation; but an estate once passed by the instrument will not revest, however destroyed. The question came up in a recent case (d); the plaintiff had by deed

(a) Doe Tatum v. Catomore, 16 U. C. R. 745; as to alteration and presumptions, Northwood v. Keating, 18 Grant.

(b) Davidson v. Cooper, 13 M. & W. 343; Crookewit v. Fletcher, 1 H. & N. 893; Master v. Miller, 1 Sm. Lg. Ca. 901, in notis.

(c) See an instance in Fraser v. Fralick, 21 U. C. 343.

(d) Lord Ward v. Lumley, 5 H. & N. 87; see also in Fraser v. Fralick, 21 U. C. R. 346; Doe dem. Burr v. Denison, 8 U. C. R. 185, remarked on; see also Laur v. White, 18 C. P. N. C. 99.

demised to defendant for a term not expired, reserving rent, and he sued in debt on the demise (not on the covenant), for the rent, averring that the defendant had entered; the plea was that after the making the deed and before suit, the deed was cancelled by mutual consent of both parties; the court considered that the estate which had passed by the lease was not divested, that the plaintiff was still reversioner and the defendant still lessee, and consequently liable for the rent reserved by reason of the privity of estate between the parties. It seems to have been conceded on argument that had the action been on the covenant as on a privity of contract it could not have been maintained; Mr. Baron Watson in his judgment says; "Where the contract arises from the deed itself, and the deed is destroyed, no action can be maintained in respect of it. But this case is very different, for upon the execution of the deed there passed from the lessor to the lessee an estate which was not affected by the cancellation of the lease; the lessee holds the estate subject to the rent, which is incident to the reversion in the lessor. According to the argument for the defendant, he may hold the estate without payment of rent. But the authorities are clear that the cancelling a deed does not divest the estate of the lessee or deprive the lessor of his right of action upon the demise."

'The fact of cancellation, though not of itself sufficient to amount to surrender, is still a strong fact from which, if coupled with others, surrender may be implied in law (a).' .

Disagreement. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as an infant, or person under duress, when those disabilities are removed; and the like. 'Where a person is named as grantee, the grant being for his benefit, the law, till the contrary appears, assumes that he assents; an assumption of the law certainly

(a) Doe dem. Burr v. Denison, 8 U. C. R. 185, see as to implied surrenders, post, s. 326.

not unreasonable. It is common, however, for those to whom property is conveyed as trustees, to renounce by deed of disclaimer (a), if they intend to decline the trust. In such case they should not reconvey, as that would imply an acceptance of the estate with the trust; which trust once assumed cannot always be renounced, at least without assent of the cestui que trust.'

Chancery.

5. By the judgment or decree of a court of judicature. Decree in This was anciently the province of the court of star-chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery. Not but that such a deed may "be often shewn to be void at law, but except in case of forgery, the deed would be good in the hands of a purchaser under it for good consideration without notice (b). The advantage, however, of resort to equity is, that the evidence to avoid the deed may die out, and then the deed be enforced, or before it be delivered up to be cancelled, a bona fide purchaser for value may act on it; whereas a court of equity will at once compel the delivery up of the deed to be cancelled, on a proper case made (c). What constitutes a proper case and in what case a court of equity will give relief, opens too wide a field for consideration here. Equity relieves also in very many instances in which a court of common law cannot interfere. Thus, for instance, as a general rule, and except under special circumstances, a purchase by an agent for sale from his principal, will be set aside at the instance of the latter, and a reconveyance decreed; whilst at law the conveyance would stand good.'

In any of these cases the deed may be avoided, either in part or totally, according as the cause of avoidance is more or less extensive.

(a) Ante, p. 331. (b) Per Wilson J., Matthewson v. Henderson, 15 C. P. U. C.. 99, referring to Schofield v. Gemplar, 5 Jur. N. S. 619; 4 De G. & J; Stump v. Gaby, 2 De. G. M. & G. 630, per Ld. St. Leonard's, L. C.

(c) Harkin v. Rabidon, 7 Grant, 243.

*S. 309.

Transfer of equitable interests.

Common law conveyances.

Original con

veyances are at common

law.

And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those which, from long practice and experience of their efficacy, are generally used in the alienation of real estate for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, and commonly denominated conveyances; which are either conveyances at com-, mon law, or such as receive their force and efficacy by virtue of the Statute of Uses.

'It may be premised that the transfer of equitable interests is not governed by the strict rules hereafter referred to applicable to conveyances of legal estates, for strictly speaking when a man's equitable interest is transferred, it is not the case of conveyance of land, but of the trust in the land on which the trustee holds the same. Moreover, there never could have been livery of seisin, and the Statute of Uses cannot apply any instrument in writing within the Statute of Frauds and shewing the intention suffices' (a).

I. Of conveyances by the common law, 'not dependent for their effect on the Statute of Uses, or any other statute,' some may be called original or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative, or secondary; whereby the benefit, or estate originally created, is enlarged, restrained, transferred, or extinguished.

Original conveyances 'operating at common law without the aid of the Statute of Uses,' are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Parti

(a) Hayes' Convey., vol. 1, p. 96. Smith, Rl. and Pers. Prop. 282.

tion: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.

1. Feoffment.

1. A feoffment, feoffamentum, is a substantive derived from verb, to enfeoff, feoffare or infeudure, to give one a feud; and therefore feoffment is properly donatio feudi. It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporal here- < ditament to another. He that so gives, or enfeoffs, is called a feoffor, and the person enfeoffed is denominated the feoffee.

Tenant for a

a less estate might convey

a fee by

A feoffment was formerly an assurance of greater power than any other (a). By it, contingent remainders depending on particular estates could be barred or destroyed. If made by tenant in tail in possession, for a fee simple absolute, it worked a discontinuance, which tolled or took away the right of entry of the issue in tail, as also of the remainderman or reversioner, and left them but a right of action, to be enforced by the peculiar writ of formedon. When made by person in actual possession, though wrongfully so, yet if not a mere temporary trespasser, it had the effect of passing by wrong, wrong the estate of which feoffment was made; thus, on a feoffment in fee by a disseisor or mere tenant at will, the feoffee took a fee by wrong, the true owner of the freehold was disseised, remainders and reversions, if any, were dirested or displaced, so that each (strictly speaking) ceased to have any estate, which was turned to a mere right to be enforced on proper occasions. The consequence of any such powerful tortious conveyance (other than by tenant in tail) forfeiture. was immediate forfeiture of the feoffor's estate. As by the R. S. O. c. 98, s. 3, a feoffment has no longer a tortious operation, so now it will work no forfeiture' (b).

As the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the

(a) See Smith, Rl. and Pers. Prop. 4th Ed. p. 624, n. k.

(b) Shelford Stats. 7th Ed.

but such worked a