been said on this branch of the subject to awaken the attention of the reader to the subject. The precedents in the Appendix will exhibit other covenants, and the circumstances and condition of parties will perhaps render others expedient or necessary.

With regard to the duration of the estate created by lease, we have no restriction save that contained in the 14th section of the 1st article of the constitution of 1846, which provides that no lease or grant of agricultural land for a longer period than twelve years thereafter made, in which shall be reserved any rent or service of any kind, shall be valid. This restriction is not applicable to urban or village leases, or to any others except those intended for agricultural purposes. The constitution of 1846 was framed during the period when the anti-rent excitement, which prevailed for many years in certain portions of the state, was fresh in the recollection of the delegates; and the object doubtless was to prevent the formation of long leases for agricultural purposes, and to encourage the tenants in their efforts to acquire the fee. Beyond this restriction, there is no legal objection that will prevent the owner of land in fee from granting any lease at will, or for years, or for life, or for any other period that may suit the convenience of the parties.

A tenant by the curtesy or in dower, or other tenant for life, can make no lease that will be valid after the death of the lessor. The derivative estate must fall with that out of which it was created.

A tenant for years may assign his whole term, or he may make a lease to a third person of a less estate than his own.

The act of 1855, chapter 230, in relation to conveyances and devises of personal and real estate for religious purposes, forbids the making of any grant, conveyance, devise or lease, to any person and his successor or successors in any ecclesiastical office. The object of the statute evidently was to induce all the religious denominations to cause themselves to be incorporated under the general act, and the amendments thereto, so that the temporalities of the church might be under the control of the people, and not be subject exclusively to ecclesiastical management. Though the law is general, it affected only the Roman Catholics, who preferred to retain the title of the property, which was dedicated to religious purposes, in the hands of their bishop. This was believed to be contrary to the policy of our laws.

Guardian in socage had, at the common law, the custody of the

land, and was entitled to the profits for the benefit of the heirs. He might lease the land, avow and bring trespass in his own name. (Byrne v. Van Hoesen, 5 John. 66. Field v. Schieffelin, 7 John Ch. 150. Holmes v. Seely, 17 Wend. 75.) On the death of the father, the mother succeeded as such guardian, and could in that character enter on the lands of the heirs. (Jackson v. De Watts, 7 John. 157.) At common law this species of guardianship belonged only to such blood relative of the infant as could not by possibility inherit from him. Under the operation of our laws of descent, which allow both the father and mother, in certain contingencies, to inherit from the child, this species of guardianship has disappeared. But a substitute for it has been provided by the revised statutes. (1 R. S. 718, § 5. 2 id. 153, § 20.)

A lease executed by a testamentary guardian, or a guardian appointed under the statute, should not be made for a longer period than the full age of the infant; and if made for a longer time, will be void for the excess.

Executors and administrators may dispose of terms for years vested in them in right of the testator or intestate; and may lease the same for a less number of years; the rent so reserved will be assets in their hands. (Bac. Abr. Lease, I, 7.)

Joint tenants and tenants in common may either make leases of their undivided shares, or may join in a lease of the whole. (Id. No. 5.)

All persons, whether natural or artificial, though they be idiots, lunatics, infants or married women, are capable of being lessees. This is for the reason that a lease is always presumed to be beneficial to the person who takes it. When the lessee labors under disability at the time the lease is made, he may on the removal of the disability avoid such lease. A continued occupancy after the removal of the disability, would render the lease good. (Cruise's Dig. tit. Lease, 93.)

SECTION III.

Of Exchange and Partition.

1. Exchange is a mode of conveyance not used in this state. The object can be better accomplished by the grant, or bargain and sale by one party to the other, of the parts intended to be exchanged.

The statute in relation to dower seems, however, to contemplate WILL.-28

the existence of this form of alienation. It is provided that if a husband, seised of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but shall make her election to be endowed of the lands given or of those taken in exchange. (1 R. S. 740, § 3.)

An exchange is defined to be a mutual grant of equal interests, the one in consideration of the other. The estates exchanged must be equal in quantity; not of value, for that is immaterial, but of interest; as fee simple for fee simple, a lease for twenty years for a lease for twenty years, and the like. (Per Gridley, J. in Wilcox v. Randall, 7 Barb. 638, quoting 2 Bl. Com. 323.)

Coke says that there are five things necessary to an exchange: 1. That the estates given be equal. 2. That this word excambium, (exchange,) be used, which is so individually requisite, as it cannot be supplied by any other word, or described by any circumlocution. 3. That there be an execution by entry or claim in the life of the parties. 4. That if it be of things that lie in grant, it must be by deed. 5. If the lands be in several counties, there ought to be a deed indented, or if the things lie in grant, albeit they be in one county. (Co. Lit. 51 b.)

In Wilcox v. Randall, (supra,) the supreme court held that the word exchange, as used in the foregoing section of the revised statutes relative to dower, is to receive the same interpretation which is applied to it, when used at common law, in reference to that species of conveyance; and therefore, to deprive the wife of her dower in lands conveyed by her husband, or to put her to an election, under the provisions of the statute, there must be a mutual grant of equal interests in the respective parcels of land, the one in consideration of the other. In that case it was held, that a transfer of a mere equitable interest in 75 acres of land, derived under a lease in perpetuity, for 11 acres of land and $700 in other property, did not constitute a legal exchange. (See also Runyan v. Stewart, 12 Barb. 542.)

The word exchange implied a warranty; and therefore, if either party was evicted of the premises taken 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. Entry must be made by both parties in their lifetime; and if either party died before entry, the exchange was void. (2 Bl. Com. 323.)

The revised statutes, we have already seen, abolished all lineal

and collateral warranties, and directed also that no covenant should be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. (1 R. S. 738, 739, §§ 140, 141.) If an exchange, in its common law sense, can be made at all, it must, to be effectual, contain a special covenant with respect to title.

In England it is said that an exchange by lease and release is now the preferred mode, since the statute of uses executes the possession instantly upon the execution of the deed. With us, if that mode of conveyance be adopted, or that by grant or bargain and sale, no entry would be required and no covenant implied. (2 Bl. Com. 323, notes, Sharswood's ed. Butler's note to Co. Litt. 271 b, n. 1.) With respect to a deed of partition it may be observed that it was anciently made in a deed to which all the joint tenants or tenants in common or parceners were parties. (See several forms in 4 Newnam's Conveyancer, 570 et seq.) In this state it has been repeatedly held that a parol partition between tenants in common, followed up by possession, is valid and will sever the possession. (Jackson v. Harder, 4 John. 202. Same v. Bradt, 2 Caines, 174. Same v. Vosburgh, 9 John. 270. Same v. Livingston, 7 Wend. 136, 141. Corbin v. Jackson, 14 id. 619. Jackson v. Luquere, 5 Cowen, 221. Bool v. Mix, 17 Wend. 119. Ryers v. Wheeler, 25 id. 434.)

It is more usual to make partition by some instrument in writing, under seal. When large tracts of land were granted, as was formerly the case to several, the practice was to have the same surveyed and laid out into lots, regularly numbered; and then, either amicably or by commissioners agreed upon, divide the lots amongst the proprietors, and all unite in a deed of partition, assigning and releasing to each proprietor the portion belonging to him. When partition is made in this way, the parties, after a lapse of above twenty years, will be concluded by it, and will not be permitted to show that the survey and partition were erroneous. (Jackson v. Hasbrouck, 3 John. 331.)

A mutual grant by one party to the other of the share to which the latter is entitled, will convert the joint estate into an estate in severalty. This is the preferable mode where the parties are few in number. Thus if there be three parties to the common estate, there must be a deed or a release from the two to one. In a joint

estate held by two, mutual grants to each other, or releases of the share allotted to each, should be given.

The mode of making partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common, when the parties are unable to agree, or any of them labor under disability, is prescribed by the revised statutes. (Code of Procedure, § 448. 2 R. S. 316.) This belongs rather to a treatise on the practice of the courts, than to our present subject, and enough has been said about it in a former part of this work. (Part 1, ch. 7.)

SECTION IV.

Of the derivative conveyances, Release, Confirmation, Surrender, Assignment and Defeasance.

The conveyances which have been treated in the three preceding sections are the original conveyances at common law. We propose now briefly to notice the above derivative conveyances. Where a man has the right of property and another is in possession claiming adversely, the real owner cannot grant or convey the land to a stranger, but may pass his estate in the land to the party thus in possession, by an instrument called a release. A release therefore is a conveyance of a right to a person in possession. A release to a person out of possession is inoperative. (Bennett v. Irwin, 3 John. 363.) It is said that a release may operate five ways: 1. By way of enlarging an estate. Thus, if he who has the remainder in fee releases to the tenant for a term of years or for life, in possession, and his heirs, this vests in the particular tenant the fee simple. (Litt. § 465.) To give operation to this release as such, the tenant must be in possession of some estate for the release to operate upon. 2. By way of passing an estate, as where one parcener or joint tenant releases to the other, the latter becomes seised in severalty of the whole. In these two cases there must be a privity of estate between the releasor and releasee; that is, both estates together must make the fee. 3. By way of passing a right; as if a man be disseised, and he who is disseised releases to the disseisor all his right. This changes the estate of the disseisor, which at first was tortious, into a rightful estate. This release to be effectual must be to one who has the whole right, or a fee simple. 4. By way of extinguishment. (Litt. §§ 479, 480.) This is where he to whom the release is made cannot lease that which is released to him, as