Entry. of the other and occupies his right, and each of them has already had corporal possession of his own land. But entry must be made on both sides: for, if either party die before entry, the exchange is void, for want of sufficient notoriety (d); also, by the Statute of Frauds, writing is made essential to an exchange, and if one or both things lie in grant a deed is necessary (e). If two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice because the exchange was not completed, and thereImplied mutual fore he shall return back to his own (ƒ). Formerly, as we have seen, an exchange of any hereditaments implied a warranty, so that if either party were evicted of those* which were taken by him [* 517] in exchange, through defect of the other's title, he could return back to the possession of his own. This effect of an exchange and that of a similar doctrine in cases of partition were abolished (g) by the legislature declaring that an exchange or partition shall not imply any condition at law. warranty. 6. Partition. 6. A partition, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part (h). Here, as in some instances there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law coparceners and tenants in common might have made it by parol with livery of seisin (i); jointtenants, being already seised of the whole, could only testify a partition by deed (k). The Statute of Frauds made writing necessary, and a deed is now under the recent act essential in every case (7). The partition between jointtenants is technically effected by release, in other cases by conveyance carrying livery of seisin (m). But exchanges are now invariably effected, not by any technical common law assurances but by simple conveyances by grant, as if made upon mutual sales: and partitions are usually effected by a conveyance to a grantee, to such uses as will vest the several parts in the grantors respectively in severalty. Inclosure of com * We may remember that the legislature has made provision for the inclosure and partition of commons and other waste lands, and when effected in this manner no conveyances are necessary. By an act passed in the year 1834 (n), for the purpose of facilitating mutual exchanges between mon fields. [* 518 ] owners of lands intermixed in common fields, meadows, or pastures, provision has been made for carrying out the mutual conveyance where by reason of the disabilities or limited interest of some or one of the parties, without such authority, the conveyance could not be made. And a subsequent act (o) contains corresponding provisions for separate inclosure of such common fields; and under the Commons Inclosure Act (p) an order of the com (1) 8 & 9 Vict. c. 106, s. 3. (m) Chester v. Willan, 2 Saund. 97; ante, p. 358. (n) 4 & 5 Will. 4, c. 30. The schedule contains a form of the deed to be executed. (0) 6 & 7 Will. 4, c. 115; extended by 3 & 4 Vict. c. 31. (p) 8 & 9 Vict. c. 118, s. 147. missioners for the exchange of lands not subject to be inclosed under the act may be obtained, the effect of which is to confer a good title to each person interested. A copy of the order then becomes the title deed, and the land received under it remains to the same uses and trusts as those to which the land given in exchange stood limited previously. Those These are the several species of primary or original conveyances. which remain are of the secondary or derivative sort; which presuppose some Derivative con- other conveyance precedent, and only serve to enlarge, confirm, veyances. alter, restrain, restore, or transfer the interest granted by such original conveyance. As, 7. Releases. Per mitter 7. Releases; which are a discharge or conveyance of a man's right in lands or tenements, to another that has some former vested estate. The words generally used therein are "remise, release, and for ever quitclaim" (q), or more usually "release" simply. And these releases By way of enlarg- may enure either, 1. By way of enlarging an estate, or enlarger ing an estate. 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 (r). The remainder must for obvious reasons be an immediate remainder, or in other words, the estate of the relessee must be capable of *merging in that of the relessor: [* 519 ] and in order that this may take place, the relessee must have an estate for the release to work upon. An interesse termini in the relessee is insufficient, and a release of a reversion to one who has only such an interest is void (s). 2. By way of passing an estate, or mitter l'estate: this is where l'estate. one of two coparceners or joint-tenants releases all right to the other, this passes the fee-simple of the whole, and is the proper assurance between such parties (t). And in these cases there must be a privity of estate between the relessor and relessee (u); that is, one of their estates must be so related to the other, as to make but one and the same estate in law. Moreover, words of inheritance are not essential, since the estate of the coparcener or jointtenant is limited already. 3. By way of passing a right, or mitter le droit, as if a man be disseised, and releases 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 (x). No privity is necessary in this case, and indeed often ex necessitate rei cannot exist. 4. By way of extinguishment, as where a lord of a freehold tenant releases his seignoral right. This extinguished for ever the rights, for the tenant cannot have services to receive of himself (y). It will be remembered that the effect of a release from a rentcharge of part of the property charged is now effectual without releasing the residue, which formerly was not the case (z). 5. By way of entry and feoffment: as if there be two joint disseisors of a tenant in fee-simple 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 Per mitter le droit. By extinguishment. By entry and feoffment. entered, and thereby put an end to the disseisin, and afterwards had [* 520] enfeoffed one of the disseisors in fee (a). 8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines it (b) to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular 8. Confirmation. estate is increased: and the words of making it are these, "give, grant, ratify, approve, and confirm;" but no special words are requisite, and indeed no words at all, for conduct, such as receipt of rent by the reversioner under a voidable lease, is sometimes sufficient (c). An instance of the first branch of the definition is, if tenant for life or in tail lease for forty years, and die during that term; here the lease for years is voidable by him in reversion: yet, if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure (d). The latter branch, or that which tends to the increase of a particular estate is the same in all respects, with that species of release, which operates by way of enlargement. 9. A surrender, sursumredditio, or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate's descending 9. Surrender. upon the less, a surrender is the falling of a less estate into a greater. It is defined (e), a yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is usually done by these words, "surrender, grant, and yield up," though no special form of words is essential (ƒ). It must by the Statute of Frauds be in writing, and under the recent act, if it be not a surrender of a copyhold or of an interest which might by law be created without writing, *it [* 521] must be by deed (g). The surrenderor must have a vested estate, not a mere interesse termini (h), and the surrenderee must also have a vested estate, which must be at least of equal degree (i). It seems that the surrender must be of the whole estate of the surrenderor (k), and must take effect immediately, or, at least, immediately upon a condition precedent being complied with (7). In a surrender there can be no occasion for livery of seisin (m); for there is a privity of estate between the surrenderor, and the surrenderee; the one's particular estate, and the other's remainder are one and the same estate; and livery having been once made at the creation of it, no necessity can exist for having it afterwards. And, for the same reason, no livery ever was required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes: since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory (n). We may here (a) Co. Litt. 275, 278. (b) Co. Litt. 295. See s. 472. (c) Litt. s. 515, 531. See 13 & 14 Vict. c. 17. (d) Litt. s. 516; Co. Litt. 295 b; 3 M. & P. 59. (e) Co. Litt. 337; 5 M. & P. 785. (f) See Wils. 127; Cro. Jac. 169; 2 Wils. 26; 5 Moo. & P. 800. (g) 2 Roll. Ab. 498; 8 & 9 Vict. c. 106, s. 3. (h) Heming v. Brabason, 1 Bridg. 6; Co. Litt. 338 a; Shep. Touch. 334; Colbourne v. Mixstone, 1 Leon. 129; which seems to show that an interesse termini may be surrendered, is incorrectly reported. See Doe v. Walker, 5 B. & C. 111. (i) Co. Litt. 338; Perk. s. 589; Cro. Eliz. 303; Doe v. Walker, 5 B. & Cr. 111. (k) Touch. 308; Hard. 417. (2) Perk. s. 624; Weddall v. Capes, 1 M. & W. 50; Doe d. Murrell v. Milward, 3 Id. 328; Coupland v. Maynard, 12 East, 134. (m) Co. Litt. 50. Implied surrender. notice that surrenders are sometimes implied by law, though no actual deed of surrender has been made. Thus, a lessee accepting a new lease, the existence of which is incompatible with the continuance of his former lease, operates by implication as a surrender of the former lease (o), (377) and when the purpose for which a term of years Satisfied terms. has been created is satisfied the term itself ceases to exist (p). 10. An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied 10. Assignment. [* 522] to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands in the place of the assignor. The assignee, however, does not take upon him all the responsibilities of the assignor; he is only bound by such covenants as concern the land and run with it, and his liability as to these extends only to acts or defaults during the period that he himself is in possession of the term (q). Whereas the original lessee, whose covenants extend over the whole period of the demise, is liable to the lessor or covenanter for the acts and defaults, not only of himself, but his assign also, though entitled to an indemnity from the latter (r). Formerly the law did not permit a man to convey directly to himself in any manner, even to himself jointly with others (s). This rule has, by the aid of the Statute of Uses (of which more presently), long been evaded as regards freehold interests. But since that statute did not apply to personal interests, such as estates for years, it was necessary when such a conveyance was desired (which often happens on a change of trustees) to execute two deeds. To obviate this, a provision has been made by a recent act, and now any person may assign personal property, including chattels real, directly to himself and another person or persons, or corporations (t). Alienation of copyholds. Assignment. * In our discussion of copyhold tenure, and the peculiarities attend[* 523] ing it, we had occasion to notice the special mode by which copyholds are alienated, so far at least as regards the legal estate. Any deed, however, such as an assignment, is sufficient to pass the beneficial interest in the property, so as to entitle the assignee to call upon the tenant to surrender in his favour. A common Covenant to sur mode of assurance for this purpose is a covenant or simple agreement by deed to surrender, which has, in fact, all the virtue of a conveyance except that of giving the alienee the legal title as evidenced by the Court Rolls. render. (0) 5 Co 11; 2 Prest. Conv. 138; 1 Per. & 16, the leading case upon the subject; folDav. 440; 2 Mee. & W. 882. lowed by a vast variety of others, of which (8) 1 Saund. Uses, 129. (377) Shepard v. Spaulding, 4 Metc. 416. See Elliott v. Aiken, 45 N. H. 30; Hesselstun v. Seavey, 16 Me. 212; Randall v. Rich, 11 Mass. 494; Matthews v. Taberrer, 39 Mo. 115; Patchin v. Dickerman, 31 Vt. 666. VOL. I.-95 11. Defeazance. 11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated (u) or totally undone. And in this manner mortgages were, in former times, sometimes made; the mortgagor enfeoffing the mortgagee, and he, at the same time, executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed, at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law (v); and, therefore, only indulged; no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely Defeazance sub- executory, or to be completed by matter subsequent (as rents, of which no seisin could be had till the time of payment; and so also annuities, conditions, warranties, and the like), were always liable to be recalled by defeazances made subsequent to the time of their creation (w). A defeazance must be by matter as high as the instrument to be defeated, so that a bond or covenant * cannot be defeated at law by writing unsealed (x), [* 524 ] although such an agreement might be enforced in equity (y), and if executed might even operate at law as an accord and satisfaction, satisfying, not defeating, the obligation (z). sequent. Before explaining the operation of the conveyances, which remain to be noticed, and completing our account of those already mentioned, we must here digress somewhat to mention the doctrine of uses, to which we have many times alluded (a), how it became engrafted upon the common law, and how it was transferred by the legislature. Uses and trusts, which are names meaning the same thing, though now used on somewhat different occasions, are in their nature not unlike the fidei commissum of Roman law (b). The notion of one man having the legal tenancy, or being the terre tenant, yet bound in conscience to dispose of the land according to the wishes of another, was unquestionably adopted in England from the civil law. The mode in which this conscientious obligation was enforced by the aid of the ecclesiastical chancellors will be dealt with hereafter, and need not here be enlarged upon. It is common to ascribe the introduction of the system to the ingenious selfishness of ecclesiastics, as a means of evading a mortmain law, and also of facilitating the devise of land to themselves by dying penitents. Certainly, among the earliest doctrines established, is the rule that though lands, of which a testator was seised, were not in those early times devisable; yet, if he had conveyed them to a trustee, and retained only the use of them, the beneficial interest so retained might be devised by will, and the [* 525] trustee would be compelled to hold the land in trust, not for the heir of the testator, but the devisee. Whatever may have been the leading motive of those who originally introduced the system of uses and trusts, it was adopted (u) From the French verb defaire, infectum reddere. (0) Co. Litt. 236. (w) Co. Litt. 237. (x) Cr. El. 697; 5 B. & Al. 187. (y) 1 Russ. & M. 178. (z) 3 T. R. 599; 1 East, 619. |