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sells, enfeoffs, and confirms to B. in fee, by deed indented, with a letter of attorney in the deed, to make livery, and the deed is after enrolled within six months; this shall pass as a bargain and sale, notwithstanding the letter of attorney in the deed. For the feoffor has given the feoffee an election to execute the estate one way or the other, and that way which first executes the estate shall stand.

convey by.

12. As a bargain and sale only passes a use, none Who may but those who are capable of being seised to a use can bargain and sell. For there must be a person seised to a use, and a use in esse, before the statute Tit. 11. c. 3. can have any operation.

13. It follows that neither the king, nor a queen regnant, can convey their lands in this manner. But, as all private persons may be seised to a use, they may convey their estates by bargain and sale.

14. Lord C. B. Comyns says, a corporation may bargain and sell, for they may give a use, though they cannot be seised to a use; and founds this position on the following case.

3 Leon. 175.

15. The prioress of Hallywell conveyed certain Holland v. lands, by the words dedi et concessi pro certa pecuniæ Bonis, summa, to Lord Chancellor Audley and his heirs. It was objected, that a bargain and sale by a corporation was not good; for it could not be seised to another's use. But the Court rejected the objection as dangerous; for that such were the conveyances of the greater part of the possessions of monasteries. And it was said, that although such a corporation could not take an estate to another's use, yet they might charge their possessions with a use to another.

16. This case appears to be of doubtful authority ; for the only principle upon which it can be supported, namely, that lands may be charged with a use, was

1 Rep. 127 a. utterly rejected in Chudleigh's case; in which it was held, that a use being a confidence and trust, it would be an absurdity to say that it was annexed to the land, like a rent or common; and it is now generally admitted that a corporation cannot stand seised to a

What may be

use.

17. Every estate of freehold or inheritance in posconveyed by. session in land may be conveyed by bargain and sale. Therefore every person seised in fee simple, in tail, or for life, may convey his estate by bargain and

Taylor v.

Valc, Cro.
Eliz. 166.

Beaudeley v.
Brooke,

sale.

18. It was formerly held, that there must be an actual seisin in the bargainor, at the time when the bargain and sale was made, for that without a seisin no use could arise. This seems too general, for in Fox's case it was held that a reversion expectant on a freehold estate, might be conveyed by bargain and sale. It appears to be now admitted, that estates in remainder and reversion may be conveyed by bargain and sale; provided the right to them be actually vested in the bargainor at the time.

19. A rent in esse may be conveyed by bargain and sale, as also an advowson, tithes, commons, or any other incorporeal hereditaments; for they are expressly mentioned in the statute of uses. Such incorporeal hereditaments must, however, be in actual existence at the time, otherwise they will not arise from the bargain and sale.

20. A person bargained and sold lands to J. S., in Cro. Ja. 189. fee, together with a way over other lands. It was held that no right of way passed, because there was no grant of it in the indenture, but only a bargain. and sale of the land, and of a way over the land which could not be good, for nothing but a use passed by the deed, and there could not be a use of

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.

Franks,

ante.

21. No chattel interest in lands can be conveyed Marshall v. 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, as well as for any greater estate. And by the very 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.

Tit. 11. c. 3.

§ 4.

22. A bargain and sale is merely a conveyance of Requires a pecuniary a use; now as a use cannot be raised without a conConsiderasideration, 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 1 Rep. 176 a. imports a quid pro quo.

Moo. 569,

Fisher v.

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. person, in consideration of a certain sum of money, Smith, bargains and sells, this is a good consideration to Moo. 569. 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.

2 Roll. Ab.

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

Ward V, Lambert, Cro. Eliz. 394.

Osborn v. Bradshaw, Cro. Ja. 127. Crossing v. Scudamore,

1 Vent. 137.

Case,

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.

26. A person by indenture, reciting that J. S. was bound in a recognizance and bond for him, for divers good causes and considerations, bargained and sold lands to him and his heirs. It was proved that no money was paid; and the conveyance was held void, as a bargain and sale.

27. A person, in consideration of natural love, and 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 1 Leon. 194. Trentham, Lord P., in consideration that, with the profits of the lands to be conveyed, Trentham would pay his debts, covenanted to stand seised to the use of Trentham for 24 years. It was resolved, that no use arose, for want of a consideration, for the debts were to be paid out of the profits of the lands, so that no consideration moved from Trentham. But it was agreed, that if Trentham was to have paid the debts out of his own lands, that would have been a sufficient consideration, and the deed would have operated as a bargain and sale.

A Rent may

be reserved.

30. At common law, no rent could be reserved on 1 Inst. 144 a. a bargain and sale; because nothing but a use passed,

Cro. Eliz.

which was not such an estate as the bargainor could Wykes v. have recourse to for a distress. After the statute of Tillerd, 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.

enrolled.

2

Inst. 671.

31. When the statute of uses was made, it was fore- Must be seen, that all lands would thenceforth be conveyed by 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.

33. The time prescribed by the statute for enrolment is six lunar months, to be computed from the day of the date of the deed, which is exclusive. VOL. IV.

K

Id. 674.

5 Rep. 1 Hob. 140

If

Thomas v. Popham, Dyer, 218.

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