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a thing that was not in esse at the time, as a way, common, &c. that was newly created; for till such things were created, no use could be raised of them by bargain and sale. 21. No chattel interest in lands can be conveyed Marshall v.
Franks, by bargain and sale, because the possessor of it has infra, c. 19. no seisin out of which a use can arise. It should however be observed, that where a person is seised of the freehold of lands, he may by bargain and sale create a chattel interest out of such lands; for having a Fox's Case, seisin in himself, he is enabled to raise a use for years, and
ante. as well as for any greater estate. And by the very
Tit. 11. c.3. words of the statute of uses, the possession is as fully tranferred to a cestui que use for years, as to a cestui que use of a freehold interest: nor will an entry be necessary, in such a case, to vest the legal estate.
22. A bargain and sale is merely a conveyance of Requires a a use ; now as a use cannot be raised without a con. pecuniary sideration, it follows that no bargain and sale can be tion. good without a consideration, which must also be a pecuniary one; for the very name of the conveyance Rep. 176 a.
Moo, 569, imports a quid pro quo.
23. It is not however absolutely necessary that a 2 Inst. 672. consideration should be mentioned in the deed, for an averment of a consideration may be made. If a infra, c. 19.
Fisher v. person, in consideration of a certain sum of money, bargains and sells, this is a good consideration to Moo.569.
2 Roll. Ab. raise a use, without an averment of any sum in 786. certain, for the quantity of the sum is not material; as 1 Rep. 24 a. any sum, however small, is a sufficient consideration. 10 -- 34 a.
24. Where a person, in consideration of £ 100 paid 2 Inst. 672. by B., bargained and sold lands to B., C., and D., parties to the indenture, the lands passed to them all. For although the consideration was expressed to be
paid by one only, yet it must be intended that it was paid for them all.
25. Where no pecuniary consideration is given, the deed will be void as a bargain and sale, and no
use will arise to the bargainee. Ward v . 26. A person by indenture, reciting that J. S. was Lambert, Cro. Eliz. bound in a recognizance and bond for him, for divers 394.
good causes and considerations, bargained and sold
lands to him and his heirs. It was proved that no Osborn v. Bradshaw,
money was paid; and the conveyance was held void, Cro. Ja. 127. as a bargain and sale. Crossing v. 27. A person, in consideration of natural love, and Scudamore, 1 Vent. 137. for augmentation of the portion, and preferment in
marriage of his daughter, bargained and sold lands to her. It was resolved, that as no pecuniary consideration was given, the deed could not operate as a bargain and sale.
28. No use will arise upon a conveyance to a person, upon trust to pay the debts of the grantor ; where the debts are to be paid out of the lands
conveyed. Lord Paget's 29. By indenture between Lord Paget and one Case, i Leon. 194. Trentham, Lord P., in consideration that, with the
profits of the lands to be conveyed, Trentham would
operated as a bargain and sale. A Rent may 30. At common law, no rent could be reserved on be reserved. i Inst. 144 a. a bargain and sale ; because nothing but a use passed,
which was not such an estate as the bargainor could Wykes v. have recourse to for a distress. After the statute of
the statute Of Cro, Eliz. uses, it was resolved, that a rent might be reserved 595. on a bargain and sale, and that the reservation of such rent would be considered as a sufficient consideration to raise a use to the bargainee.
31. When the statute of uses was made, it was fore- Must be seen, that all lands would thenceforth be conveyed by 2 Inst. 671.
enrolled. bargain and sale, being a conveyance of a private nature. To prevent this, the legislature in the same sessions passed an act, 27 Hen. VIII. c. 16., by which it is declared, that no manors, lands, tenements, or other hereditaments, shall pass from one to another, whereby any estate of inheritance or freehold shall be made, by reason of any bargain and sale, except the same bargain and sale be made by writing indented, sealed, and enrolled in one of the King's courts of record at Westminster; or within the county where the lands lie, before the custos rotulo. rum, and two justices of the peace, and the clerk of the peace of the same county, or two of them at the least, whereof the clerk of the peace to be one.
32. This statute requires all bargains and sales of land to be in writing. Therefore Lord Coke says, they 2 Inst. 672. must not be by print or stamp. It is also required, that they be by indenture. Although the indenture may be either on parchment or paper, yet the enrolment must be on parchment; it being so required Id. 673. in the clause of enrolment by the clerk of the peace; the same is implied where the enrolment is in any of the king's courts of record.
| Id. 674. 33. The time prescribed by the statute for enrol. ment is six lunar months, to be computed from the Hob. 140
Thomas v. day of the date of the deed, which is exclusive. If p Vol. IV. K
the deed has no date, then the time must be computed from the delivery. .
34. By the statute 5 Eliz. c. 26. bargains and sales of lands lying in the counties palatine of Lancaster, Chester, and the bishopric of Durham, are required to be enrolled in the respective courts of those counties.
35. By the statutes 5 Ann. c. 18., 6 Ann. c. 35., and 8 Geo. II. c. 6., bargains and sales of lands lying within the west, east, and north ridings of the county of York, may be enrolled before the registers of those ridings, and shall be as good as if enrolled at Westminster.
36. By the statute 10 Ann. c. 18. S 3. it is enacted, that a copy of the enrolment of a bargain and sale, examined with the enrolment, signed by the proper officer, and proved upon oath to be a true copy, so examined and signed, shall in all cases be of the same force and effect as the indenture of bargain and sale
would be, if the same was produced. Exceptions. 37. There is a proviso in the statute of enrolments, Lands in Cities, &c.
that it shall not extend to lands, &c. lying within any city, borough, or town corporate, wherein the mayor, recorder, &c. have authority to enrol ; in consequence of which, lands and tenements in cities and boroughs
having the privilege of enrolment, are not within the 2 Inst. 675. act; and though the intention of the statute was only
to exempt them from enrolment in the courts at Westminster, yet it is worded in such a manner, that they
are discharged from any enrolment whatever. . And Terms 38. The words of this statute only extend to estates for Years.
of inheritance or freehold ; therefore a bargain and
sale of lands, for a term of years, need not be enrolled, Relation of 39. In consequence of this statute, the freehold Enrolment. 2 Inst. 674. does not pass from the bargainor until the deed of
bargain and sale is duly enrolled; but if it be enrolled within the time prescribed, then the enrolment has such a relation back to the date, or time of delivery of the bargain and sale, that the freehold is considered, in law, as having passed, to all intents and purposes, from the bargainor to the bargainee, im. mediately on the date or delivery of the bargain and sale.
40. All conveyances or incumbrances made or created by the bargainor, subsequent to the date or delivery of the bargain and sale, and prior to the enrolment, are therefore void as against the bargainee.
41. A person conveyed lands by bargain and sale to Bro. Ab. one, and afterwards conveyed to them another by bar- din.
- Faits Inrol. gain and sale. The last deed was enrolled : afterwards the first deed was enrolled, within the six months. It was resolved, that the first bargainee should have the land, as it had relation to make it the deed of the vendor, and to pass the land from the delivery of the deed.
42. One Sewster being seised of certain lands in Mallory v. fee, by deed, dated 7 November, bargained and solder them for money. On the 9th of the same month he acknowledged a recognizance : on the 20th, the deed was enrolled. On a scire facias, brought upon the recognizance, the question was, whether Sewster was to be considered as having been seised of the lands on the 9th of November, the deed not having been enrolled till the 20th of that month. It was adjudged unanimously, that Sewster was not seised of the lands on the 9th November, for that when the deed was enrolled, the bargainee was in judgement of law seised of the lands from the date of the deed. 43. Neither the death of the bargainor, nor that
2 Inst. 674.
Dymock's of the bargainee, before enrolment, will prevent the Case, Cro.Ja.
408. Hob. K 2