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where a release is made to the tenant of the land of a rent charge, or common of pasture. (Id. 480.) 5. By way of entry and feoffment, as if there be two joint disseisors and the disseisee releases to one of them, or becomes sole seised, and shall keep out his former companion. (2 Bl. Com. 325.)
The operative words of a release are remise, release and forever quit-claim. (Litt. § 445.) Such a conveyance, merely remising, releasing and quit-claiming to another, his heirs and assigns forever, though technically a release, has been held in this state to be a good conveyance by way of bargain and sale, and sufficient to pass the fee, though the releasee was not in possession. (Jackson v. Fish, 10 John. 456. Beddoe v. Wadsworth, 21 Wend. 120. Lynch v. Livingston, 2 Seld. 42.) It is, therefore, under the revised statutes, good as a grant. And it is for this reason that á release by one tenant in common to his companion will be good; because, though they have distinct freeholds, the one may convey to the other, which is well effected by the release.
A confirmation bears a strong resemblance to a release. It is defined by Coke to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased. (Co. Litt. 295 b.) The operative words of this conveyance are, according to Littleton, give, grant, ratify, approve and confirm. (Litt. SS 515, 531.) A confirmation cannot work upon an estate that is absolutely void. An example of one branch of the definition is, if lessee for life should make a lease for thirty years, and die during the term: here the lease for thirty years is voidable by the reversioner. Yet if he had confirmed the estate of the lessee, in the lifetime of the tenant for life, the estate would be no longer voidable but sure.
A surrender is a conveyance, the converse of a release. The release operates by the greater estate descending upon the less. The surrender is the falling of the less estate into the greater. It is defined, by Coke, to be a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them. The technical and proper words of this conveyance are, “surrender and yield up;" but any other form of words which manifests the intention of the parties, will operate as a surrender. Formerly, a surrender might be made without deed, as by a tenant for life yielding up the possession to him in remainder or reversion, which was always favored in law. (Co. Litt. 338 a.) But now, by the statute of frauds, a surrender, like other conveyances of an estate or interest in land, is required to be in writing, subscribed by the party executing the same, unless in cases where it is accomplished by act or operation of law. (2 R. S. 135, $ 6.) An instance of a surrender by operation of law is contained in Livingston v. Potts, (16 John. 28.) In that case it was held that where a lessee for years, for life, or pur auter vie, accepts a new lease or a grant in fee of the same premises, this, without any actual surrender of the old lease, is a surrender in law, or an implied surrender of it; and if the former lease gave the lessee a right of common in the other lands of the lessor, and no such right was granted by the second lease, it was further held that the common was extinguished by the surrender.
To make a surrender good, the person who surrenders must be in possession; and the person to whom the surrender is made must have a greater estate, immediately in remainder or reversion, in which the estate surrendered may merge. This is well illustrated by the case of Springstein v. Schermerhorn, (12 John. 357.) In that case, it appeared that a tract of 400 acres of wood land was leased by the proprietor of the manor of Rensselaerwick, in 1707, to A. in fee, reserving an annual rent, and granting reasonable estovers out of the woods of the manor, &c. In 1763, A. granted to his son B. part of the premises, with common of estovers, out of any part of the wood land of A.; and afterwards devised to his sons C. and D. the residue of the said tract, who, on the death of the devisor, entered and made partition. In 1791, an agreement was made between B., C. and D. and other tenants of the manor, with the then proprietor, by which the tenants agreed to surrender or release their former leases, and take new leases of the proprietor at a certain rent, and new leases were accordingly accepted, for their respective lands, by B., C. and D. It was held, that as there was no reversion in the proprietor of the manor, the acceptance of new leases did not operate as a surrender of the former estate, but that the lessees, having accepted new leases from the proprietor, in pursuance of the agreement, a release of the old was to be presumed. And further, that B. was thereby estopped from all claim under
the lease to him; and that for these reasons, the right granted to B. to take estovers from the other lands of A. was gone.
To make a valid surrender there must be a privity of estate between the surrenderor and surrenderee.
The possession necessary to enable a party to execute a deed of surrender need not be an actual pedis possessio. A conveyance of wild and uncultivated lands gives a constructive seisin thereof in deed to the grantee, and attaches to him all the legal consequences and remedies incident to the estate. (Jackson v. Sellick, 8 John. 262. Same v. Howe, 14 id. 405. Bradstreet v. Clarke, 12 Wend. 602. Jackson v. Johnson, 5 Cowen, 97.)
An assignment is properly a transfer of some particular estate or interest in lands, but is usually applied to the transfer of a term for years, or a bond and mortgage, judgment or other security. It differs from a derivative lease only in this, that by such lease the lessor conveys an interest less than his own, reserving to himself a reversion; whereas in an assignment the assignor parts with the whole interest in the thing assigned, and puts the assignee in his place.
The proper technical words of an assignment are, “ assign, transfer and set over.” But any other words that indicate the intent, as give, grant, bargain and sell, will have that effect. No considcration is necessary to support the assignment of a term for years; for the payment of the rent, or other burdens attending the estate, are sufficient to vest the estate in the assignee.
Before the statute of frauds, chattels real might be assigned by parol; as personal property, or choses in action may be now by delivery only. (Ford v. Stuart, 19 John. 342. Briggs v. Don, Id. 95. Prescott v. Hull, 17 id. 284. Canfield v. Munger, 12 id. 284.) But the statute of frauds, which requires a deed or note in writing subscribed by the party, to render valid the alienation of an estate or interest in lands, embraces assignments among the instruments thus required to be in writing. (2 R. S. 135, $ 6.)
The lessor may assign the rent without the reversion. (Demarest v. Willard, 8 Cowen, 206.)
With some exceptions created by the statute or the agreement of the parties, every estate and interest in lands and tenements may be assigned; and this is applicable also to an estate in incorporeal hereditaments, as rents, &c. Thus, by the statute relative
to uses and trusts, section 63, no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign, or in any manner dispose of such interest; but the rights and interests of every person for whose benefit a trust for the payment of a sum in gross is created, are assignable. Enough has been said on this subject in the chapter on trusts.
The beneficial interest of a cestui que trust in the income of a fund for the support and maintenance, under a valid trust, which would have been invalid if created after the revised statutes, is transferrible hy him, but the beneficial interest of a cestui que trust in rents and profits is inalienable by statute. (Bryan v. Knickerbacker, 1 Barb. Ch. 409. Wood v. Wood, 5 Paige, 596.)
A naked power is not assignable, but a power coupled with an interest may be assigned. (Osgood v. Franklin, 2 John. Ch. 1. 14 John. 527.) .
A defeasance is a collateral deed made at the same time with a grant or other legal conveyance, containing certain conditions, upon the performance of which the estate created by such deed may be defeated. The difference between a condition and a defeasance is that the first is contained in the deed, and the last in a separate deed, generally executed at the same time. We have seen in another place that the defeasance need not be executed at the same time as the deed, but may be made at a subsequent period. And where a deed has been by mistake made absolute in its terms, when intended to have been a mortgage, that a defeasance subsequently executed will be effectual to correct the error. (Dunham v. Day, 2 John. Ch. 182. 15 John. 555.)
A writing to operate as a defeasance to a deed must be of as high a nature, and must therefore be under seal. (Coke's Litt. 236 6. Kelleran v. Brown, 4 Mass. Rep. 443. Flagg v. Mann, 14 Pick. 479. Eaton v. Green, 22 id. 530.)
Of the Conveyances which owe their Origin to the Statute of Uses.
We mentioned in the introduction of this chapter, that there were five of these instruments, which were derived from the statute of uses.
1. The covenant to stand seised to uses. This was a voluntary con
veyance entered into in consideration of marriage. It was only made use of between near relations upon consideration either of marriage or blood. If made upon a pecuniary consideration, it has been upheld as a bargain and sale. This conveyance is obsolete in England, and probably does not exist at all in this state, at the present day. It is mentioned only because it formerly was employed amongst our conveyances, and is sometimes mentioned in our early reports.
The next of these conveyances is the bargain and sale, which is by far the most common mode of alienation in this state. It is a contract by which a person conveys his lands to another, for a pecuniary consideration, in consequence of which a use arises to the bargainee, and the statute immediately vests the possession.
It is well settled, upon authority, that a deed of bargain and sale, without any pecuniary consideration, is void. (Jackson v. Sebring, 16 John. 515 Same v. Caldwell, 1 Cowen, 622.)
It is not necessary that the consideration should be money. (Spalding v. Hallenbeck, 30 Barb. 292, 296.) It must, however, be a valuable consideration to the bargainor to raise a use, a quid pro quo. (Jackson v. Pike, 9 Cowen, 69.) In the last mentioned case, the deed was to the supervisors of the county of C., and the consideration was expressed to be, “as well for and in consideration of accommodating the said parties of the second part with a proper and convenient site for erecting a court house and jail for said county, as for increasing the value of property owned by the said parties of the first part, adjacent to the premises granted.” This was held by the supreme court to be a valuable consideration, and
that the deed was valid as a deed of bargain and sale. The chief · justice said, the deed was given in consideration that a court house
and jail should be built upon the land; which was done, and the grantors' lands were, in consequence, immediately and materially, enhanced in value by fixing the site, which was done upon the execution of the deed.
That a valuable consideration is necessary in a deed of bargain and sale, is established by all the cases. In addition to those cited supra, see also Jackson v. Florence, (16 John. 47;) Same v. Delany, (4 Cowen, 427.)
The words for value received are sufficient to raise a use. They