Coke says" If a man make a lease for years, remainder for years, and the first lessee enters, a release to him in the remainder for years is good, to enlarge his estate:" which showed his opinion to be, that it is not necessary the estate to be enlarged should be in actual possession, and that it sufficed if it was a vested estate, divided from the possession. 12. In the case of Shortridge v. Lamplugh, which will be stated in a subsequent part of this chapter, the § 17. person who conveyed by lease and release, had only a reversion expectant on a term for years and this circumstance does not appear to have been noticed either by the counsel, or the judges. 18. 13. Estates in remainder and reversion expectant ante, c. 9. on estates for lives, may be conveyed by lease and release but in cases of this kind it is inaccurate to say that the releasee is in the actual possession of the 1 Inst. 270 a. premises; the proper expression being, that they are actually vested in him by virtue of the bargain and sale, and the operation of the statute of uses. n. 3. Heredita 14. Incorporeal hereditaments, such as advowsons, Incorporeal tithes, rents, &c., may be conveyed by lease and re- ments. lease, because they are expressly named in the statute of uses, or comprised under the general word heredi taments. deration ne cessary. 15. Although no use can be raised on a bargain What Consiand sale without a pecuniary consideration; yet when the conveyance by lease and release became a common assurance, only a nominal consideration of five shillings was mentioned in the bargain and sale; and even a reservation of a pepper-corn rent has been held a sufficient consideration to raise a use in a bargain 2 Mod. 252. and sale to ground a release. 16. There is no necessity for expressing any consideration in a deed of release to a bargainee for Barker v. Keate, Shortridge 2 Ld. Raym. 798. years; because it operates as a common law con veyance. 17. In a writ of error from the Common Pleas, v. Lainplugh, the case was, that T. Ashby demised the lands in question for 61 years, reserving rent; afterwards he bargained and sold them for five shillings to Sir W. M. for one year; and by another indenture, dated the day after, he released and confirmed them to Sir W. M. in fee; it was resolved that the estate was well vested in the releasee, though no consideration was mentioned in the release. Does not devest any Estate. § 600. 606. Fearne, Cont. 383. 18. A conveyance by lease and release does not devest any estate, or create a discontinuance or forfeiture; for Littleton says,-"By force of a release nothing shall pass but the right which he may lawfully and rightfully release, without hurt or damage to other persons, who shall have right therein, after his decease." And in a subsequent section he says, "If tenant in tail lets the land to another for term of years, by force whereof the lessee hath possession, and the tenant in tail releases all his right in the same land, to hold to the lessee and his heirs for ever, this is no discontinuance: but after the decease of the tenant in tail, his issue may enter; for by such release nothing passed but for term of the life of the tenant in tail." 19. This conveyance will not, for the same reason, Willes Rep. destroy a contingent remainder: therefore if a person is tenant for life, with a contingent remainder depending on his estate, and he conveys in fee by lease and release, the contingent remainder will not be destroyed. Whether the Use results 20. A release may be to uses, as will be shown in the next chapter; but it has been doubted whether Tit. 11. c. 4. there can be a resulting use upon a lease and release. on it. 7 Mod. 76. In the case of Shortridge v. Lamplugh, it was held, 2 Salk. 678. that if a lease and release was pleaded to A. and his heirs, and no consideration appeared, nor any declaration of uses, it should be intended to be to the use of the releasee: and Powell, Just. said he was not satisfied that the nature of this conveyance would admit of a resulting use, though much used to raise uses upon to a third person, by express words; yet, in strictness, it was a common law conveyance: and if a lease was made for 40 years, and a release thereon, without consideration, or limitation of any use, it could not be contended to be to the use of the lessor; for the very extinguishing the estate of the lessee, was a good consideration. 21. Without questioning the case put by Powell, it may be fairly contended, that in the case of a bargain and sale for a year, for a nominal consideration, with a release thereon, without any consideration, the use would result, if no use was declared; for the extinguishment of a term of this kind could not be deemed a consideration; therefore there could be no Sanders on ground for contending against the use resulting in Uses,v. 2.65. this case, as well as upon a feoffment. And Lord Holt and Powell agreed, that if there were a par- 7 Mod. 77. ticular use declared on the release, the rest would result. Title Deeds belong. n. 4. 22. In cases of conveyances derived from the To whom the statute of uses, it is said that the feoffees or releasees are entitled to the possession of the title deeds, be- 1 Inst. 6 a. cause they formerly belonged to the feoffees to uses, in order that they might be enabled to defend the title to the land; and though now, the statute of uses transfers the legal estate to the cestui que use, yet it does not transfer the deeds. This doctrine is very questionable, as feoffees and releasees to uses have only a seisin of an instant, and are never called upon to defend the land; and it seems reasonable to suppose, that where a statute transfers the legal seisin of the lands from one person to another, it should also transfer the deeds relating to the title of such lands; as they must be totally useless in the hands of a person who has no interest in the estate. WITH respect to those conveyances derived Origin and from the statute of uses, which are said to operate by transmutation of possession, they owe Nature of. their effect to the following principles. Where lands Tit. 11. c. 4. are conveyed by feoffment, fine, or recovery, the legal seisin and estate becomes vested by these conveyanees in the feoffee, cognizee, or recoveror; but if the owner of the estate declares his intention that such feoffment, fine, or recovery shall enure to the use of a third person, a use will immediately arise to such third person, out of the seisin of the feoffee, cognizee, or recoveror, and the statute will transfer the actual possession to such use, without any entry or claim. 2. Uses might formerly have been declared by parol. But it is enacted by the statute of frauds, Must be by Deed or |