from one to another. And in this sense it comprehends feoffments, bargains and sales, gifts, leases in writing or by deed, and, sometimes, by word without writing.1 SECTION II. DEEDS UNDER THE STATUTE OF USES. 1. How the law gives effect to such deeds. 2. Difference between bargain and sale, and covenant to stand seised. 4. Form and effect of "quitclaim" deeds. 5. English forms of deeds may be used here. 1. The forms of conveyance which took their rise from the construction given to the Statute of Uses, were considered at length in their character and effect, in the chapter treating of Uses, to which the reader is referred.2 The names of these, it will be recollected, were Bargain and Sale, Covenant to stand seised, and Lease and Release. They all dispense with an actual livery of seisin, and while they all recognize a seisin as essential to give effect to the conveyance, the statute transfers this, and executes the use by uniting the legal seisin with the equitable use, and thereby creating an entire legal estate of the two. 2. The difference theoretically, between a bargain and sale and a covenant to stand seised, consisted in the consideration *out of which the use was raised to which the law united [*606] the seisin. In bargain and sale, it required this to be money, or something representing money. In covenant to stand seised, it consisted of relationship by consanguinity or affinity, though, as will hereafter appear, this distinction seems to have been sometimes lost sight of by the courts. 3. In a lease and release, the transfer of the seisin and estate from the grantor to the grantee, was by a bargain and sale, for a year, for instance, for some valuable consideration, whereby a use for that time was raised in the bargainee, and the statute passed to him the 1 3 Wood, Conv. 7. 2 Ante, pp. 127-156. legal possession of the land, and then by a release from the owner of the reversion, which did not require a formal livery of seisin. This last had to be done by deed, being a simple common-law conveyance of a reversion. Both the lease and release were known to and in use under the common law. But for the latter to become operative, it had to be made to one having an estate in or possession of the land, while a lease, before entry under it, created no estate in the lessee, but a mere interesse termini, as it was called. So that this mode of conveyance by lease and release, derived its vital energy and effect from the possession which the law, under the statute of uses, gave to the lessee or bargainee for the year, thereby rendering him capable of acquiring the inheritance by a simple deed of release." It, consequently, required two deeds, and became the usual mode of conveyance in England till the recent statute of 7 & 8 Vict. ch. 106, above referred to, though the necessity of a formal lease had been removed by statute in 1841.1 4. While thus enumerating the forms of conveyance by deed heretofore in use, it may be remarked, that while a deed of simple release, made to one who has neither an estate in, nor possession of, land, would be merely void, a form of deed of the nature of a release, containing words of grant as well as release, commonly known as a "quitclaim deed," has long been in use in this country, and has *NOTE. In treating of the application of the doctrine of uses to conveyances by lease and release, in an earlier part of this work (ante, p. *130), the remarks were confined to the simplest form of such a conveyance, where it is intended that the seisin and use should unite in the releasee, creating in him an estate of freehold. But it seems, from the language of Mr. Butler, that a seisin may, through such a conveyance, be united with a use in a third person, in which respect it operates like a feoffment as a mode of conveying to uses. "The bargain and sale, therefore, or the lease for the year, as it is generally called, operates, and the bargainee is in the possession, by the statute. The release operates by enlarging the estate or possession of the bargainee to a fee; this is at the common law, and if the use be declared to the releasee in feesimple, it continues an estate at the common law; but if the use is declared to a third person, the statute again intervenes, and annexes or transfers the possession of the releasee to the use of the person to whom the use is declared." Co. Lit. 271, note 231, §§ 2, 3; 4 Cruise, 116; id. 131. See ante, p. *150. 1 Wms. Real Prop. 146; Rogers v. Eagle F. Ins. Co. 9 Wend. 611, 628; Lalor, Real Estate, 249. not only been regarded, practically, as a mode of conveying an independent title to real property, but *is, by the stat- [*607] utes of some of the States, declared to be effectual for that purpose. It may be furthermore remarked, that courts, both in England and this country, are very liberal in construing deeds, so as to give them effect if possible, and, although intended to come within one class, if they cannot be made operative in that form on account of some defect, they are often found capable, and permitted to accomplish the purposes of the parties, by a construction that brings them within some other class of deeds known to the law. Among the cases that might be selected as illustrations of this, is the case of Exum v. Canty, where one made a deed, whereby he covenanted with a trustee that he would stand seised of the estate to his own use, during his own natural life, and immediately on his death, to the use of the trustee in trust, that he should convey it to A B, his heirs, &c. The consideration stated in the deed, was the love and affection he had for A B, and in consideration that he had before supported the grantor, and had agreed to do so thereafter. But there was no relationship between the grantor and A. B. The court sustained the deed, saying, the instrument was in effect a conveyance which took effect upon its execution and delivery, vesting an interest in them to take effect in possession at the death of the grantor. It was plainly a covenant to stand seised to the use of the parties for whose benefit the property was intended to be conveyed, whose estate vested in possession at the determination of his estate for life reserved in it."1 In Steel v. Steel, a memorandum was attached to a deed granting the premises in terms, which stated, that the grantor did not intend to convey the same until after his decease and that of his wife, and it was held to postpone the right of the grantees to have possession of the estate conveyed, until after the death of the grantor or his wife.2 5. With this brief reference to the different kinds of deeds which have, at times, been in use in England and this country, and most, if not all of which, may still be practically employed here, it will be 1 Exum v. Canty, 34 Miss. 569. See also, Wall v. Wall, 30 Miss. 91, held to be a covenant to stand seised, though in many respects like a testamentary declaration. See also, Edwards v. Smith, 35 Miss. 197, where the question was whether the instrument should take effect as a will or a deed. 2 Steel v. Steel, 4 Allen, 417, 424. unnecessary to do more than refer the reader to what may be found upon the subject, in former parts of this work, except as particular cases may be cited to illustrate the laws of particular States.1 3. Bargain and sale, &c., forms are in use in South Carolina. 1. Many of the States have prescribed forms of deeds in their statutes, but this has generally been regarded rather as a matter of direction and declaration that such a form would be sufficient, than that it should be required. Most of these statutes, in fact, directly or indirectly refer to the common law modes as familiar and effectual forms of conveyance. Thus, while the form of deed in common use in Massachusetts is borrowed from the ancient charter of feoffment, modified by a declaration of the uses to which the estate is to be held, the statute expressly refers to "bargain and sale," and "other like conveyance of an estate," and declares that "a deed of quitclaim and release, of the form in common use in this State, [*608] shall be *sufficient to pass all the estate which the grantor could, lawfully, convey by a deed of bargain and sale." 2 2. A deed of quitclaim in common use is not only a conveyance at common law, but is recognized as valid in Connecticut, and in several of the States besides Massachusetts, by express statute.3 1 Ante, pp. *142-*156. 2 Mass. Gen. Stat. ch. 89, §§ 3, 8; Hunt v. Hunt, 14 Pick. 374, 381; Wade v. Howard, 6 Pick. 499. Rogers v. Hillhouse, 3 Conn. 398, 402. In Minnesota, Comp. Stat. 1858, ch. 35, § 1; in Maine, Rev. Stat. ch. 73, § 14; in Mississippi, Code, 1857, p. 309, art. 17; in Ohio, Hall v. Ashby, 9 Ohio, 96; in Illinois, McConnel v. Reed, 4 Scamm. 117; Kerr 3. In South Carolina, bargain and sale is regarded as a valid mode of conveyance, though lease and release was usually employed till 1795, when a form was prescribed by statute, embracing both these, though not invalidating those previously in use.1 4. In Rhode Island, it is expressly declared, that a deed of bargain and sale, of lease and release, covenant to stand seised, "or any other deed," signed, &c., shall transfer the possession of the grantor, &c., without livery of seisin. And a like declaration is found in the revised statutes of Kentucky, with a provision that a release shall be effectual without a previous lease.2 5. In some States, as already remarked, forms of deeds are prescribed by statute. As in Tennessee, for instance, it is enacted, that "the following or other equivalent form, varied to suit the precise state of facts, are sufficient for the purposes contemplated, without further circumlocution." For a deed in fee with a general warranty: "I hereby convey to A. B. the following tract of land (describing it), and I warrant the title against all persons whomsoever." Other forms are given, to be used for special covenants, for deeds of quitclaim, of mortgage and deeds of trust, of a brevity as remarkable as that of the form above given. It has been held, by the court, that though the title to land under the statute of Tennessee, does not, on the one hand, pass by operation of the statute of uses but by deed registered, yet still, on the other hand, such deed does not, like an ancient feoffment, work a disseisin.* 6. So in Maryland, while there is a form of deed which, it is declared, "shall be sufficient to convey real or personal estate," *and in which the operative word is "grant," there [*609] is a general provision as to "all deeds conveying real estate," that they shall contain the names of the "grantor and grantee," "bargainor and bargainee." And it is a remark of the court, "by the usage and practice of the State, bargains and sales, as a ة v. Freeman, 33 Miss. 292; Dart v. Dart, 7 Conn. 255; Jackson v. Hubble, 1 Cowen, 613; Jackson v. Bradford, 4 Wend. 619; Bogy v. Shoab, 13 Mo. 380; Brown v. Jackson, 3 Wheat. 452; Touchard v. Crow, 20 Cal. 150. 1 Craig v. Pinson, 1 Cheves, 272. 2 R. I. Rev. Stat. ch. 146, § 1; Ky. Rev. Stat. Stant. ed. 1850, ch. 24, § 4. 8 Tenn. Code, 1858, p. 410, § 2013. 1 Md. Code, 1860, p. 133, art. 24, § 9. Miller v. Miller, Meigs, 484, 496. |