CHAPTER V.

RELEASE.

LIT., § 444. Releases are in divers manners, viz., releases of all the right which a man hath in lands or tenements, and releases of actions personalls and realls, and other things. Releases of all the right which men have in lands and tenements, &c., are commonly made in this forme, or of this effect:

§ 445. Know all men by these presents, that I, A. of B., have remised, released, and altogether from me and my heires quiet claimed: or thus, For mee and my heires quiet claimed to C. of D. all the right, title, and claim which I have, or by any meanes may have, of and in one messuage with the appurtenances in F., &c. And it is to bee understood, that these words, remisisse, et quietum clamasse, are of the same effect as these words, relaxasse.

§ 446. Also, these words which are commonly put in such releases, scilicet (quae quovis modo in futurum habere potero) are as voide in law; for no right passeth by a release, but the right which the releasor hath at the time of the release made. For if there be father and sonne, and the father bee disseised, and the sonne (living his father) releaseth by his deed to the disseisor all the right which he hath or may have in the same tenements without clause of warrantie, &c., and after the father dieth, &c., the sonne may lawfully enter upon the possession of the disseisor, for that hee had no right in the land in his father's life, but the right descended to him after the release made by the death of his father, &c.

§ 447. Also, in releases of all the right which a man hath

in certaine lands, &c., it behooveth him to whom the release is made in any case, that hee hath the freehold in the lands in deed, or in law, at the time of the release made, &c. For in every case where he to whom the release is made hath the freehold in deed, or in law, at the time of the release, &c., there the release is good.

$449. Also, in some cases of releases of all the right, albeit that he to whom the release is made hath nothing in the freehold in deed nor in law, yet the release is good enough. As if the disseisor letteth the land which hee hath by disseisin to another for terme of his life, saving the reversion to him, if the disseisee or his heire release to the disseisor all the right, &c., this release is good, because hee to whom the release is made had in law a reversion at the time of the release made.

$450. In the same manner it is, where a lease is made to a man for terme of life, the remainder to another for terme of another man's life, the remainder to the third in taile, the remainder to the fourth in fee, if a stranger which hath right to the land releaseth all his right to any of them in the remainder, such release is good, because everie of them hath a remainder in deed vested in him.

451. But if the tenant for terme of life be disseised, and afterward he that hath right (the possession being in the disseisor) releaseth to one of them to whom the remainder was made all his right, this release is void, because hee had not a remainder in deed at the time of the release made, but only a right of a remainder.

$459. Also, if a man letteth to another his land for terme of yeares, if the lessor release to the lessee all his right, &c., before that the lessee had entred into the same land by force of the same lease, such release is void, for that the lessee had not possession in the land at the time of the release made, but only a right to have the same land by force of the lease. But if the lessee enter into the land, and hath possession of it by force of the said lease, then such release made to him by the feoffor, or by his heire, is sufficient to him by reason

of the privitie which by force of the lease is between them, &c.

§ 460. In the same manner it is, as it seemeth, where a lease is made to a man to hold of the lessor at his will, by force of which lease the lessee hath possession; if the lessor in this case make a release to the lessee of all his right, &c., this release is good enough for the privity which is betweene them; for it shall bee in vaine to make an estate by a livery of seisin to another where he hath possession of the same land by the lease of the same man before, &c.

But the contrarie is holden, Pasch. 2, E. 4, by all the justices.

Co. LIT., 270, b. "Sed contrarium tenetur, &c." This is of a new addition, and the booke here cited ill understood, for it is to be understood of a tenant at sufferance.

LIT., § 461. But where a man of his owne head occupieth lands or tenements at the will of him which hath the freehold, and such occupier claimeth nothing but at will, &c., if hee which hath the freehold will release all his right to the occupier, &c., this release is void, because there is no privitie betweene them by the lease made to the occupier, nor by other manner, &c.

Co. LIT., 271, a. Privitie is a word common as well to the English as to the French, and in the understanding of the common law is fourefold: I. As privies in estate, whereof Littleton here speaketh, as between the donor and donee, lessor and lessee, which privitie is ever immediate. 2. Privies in bloud; as the heire to the ancestor, or betweene coparceners, &c. 3. Privies in representation; as executors, &c., to the testator. And fourthly, privities in tenure, as the lord and tenant, &c., which may be reduced to two generall heads, privies in deed, and privies in law.

2 BL. COM., 324. These [feoffment, gift, grant, lease, exchange, partition] 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,

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." 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. But in this case the relessee must be in possession 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 all his right in the reversion, such release is void for want of possession in the relessee. 2. By way of passing an estate, or mitter l'estate: as when one of two coparceners releaseth all her right to the other, this passeth the fee-simple of the whole. And in both these cases there must be a privity of estate between the relessor and relessee; that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, 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. 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. 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. 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.

It may be re

2 WASHBURN, REAL PROP., 606. . marked 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 "quit-claim” deed, has long been in use in this country, and has not only been regarded practically as a mode of conveying an independent title to real property, but is, by the statutes of some of the States, declared to be effectual for that purpose. But a quit-claim deed does not pass any more title than the grantor has. .. Yet if the grantor have a title to land, a deed of quit-claim is just as effective to pass that title as a deed with covenants of warranty.