strict legal sense of the word, could not be between Prov. of Eton v. three persons, the principle of it not being applicable E. Winton, to more than two distinct contracting parties; for 3 Wils. 389. want of the mutuality and reciprocity on which its operation so entirely depends. For, first, the consideration of an exchange, and the implied warranty incident to it, is the receiving something with warranty from the same person, to whom something with warranty is given: but if there could be three distinct parties, each would give to one, and receive from another. Secondly, the implied condition of re-entry is, that it may be made on him whose title fails but if there could be three parties to an exchange, then each person would be liable to re-entry for the fault of another's title, as well as of his own. n. 1. 14. Although there cannot be more than two dis- 1 Inst. 51 ☛ tinct parties to an exchange, yet there be more may than two persons. Thus an exchange between two joint tenants, and two tenants in common, is good; for although four persons are named, yet they constitute only two distinct parties. The same observation applies to any number of persons, if so conjoined in the mutuality of giving and receiving in exchange, as to make only two distinct relative parties. Tit. 18, 19, 20. 15. It has been stated that joint tenants, copar- Partition. ceners, and tenants in common, may make a voluntary partition of their estates. The instrument to effect this is called a deed of partition, by which the lands are divided into distinct portions, and allotted to the several parties, who take them in severalty. In the old deeds of partition, it was merely agreed that one should enjoy a particular part, and the other, another part, in severalty; but now it is usual for all the parties mutually to convey and assure to each other the different estates which they are to take in severalty, under the partition. 16. By the common law, coparceners, being compellable to make partition, might have done it by parol only; but joint tenants, and tenants in common ante, c. 3. § 1. must have done it by deed. The statute of frauds has abolished this distinction, and made a deed equally necessary in all cases. infra, c. 24. Vide Ireland ६ Idem, Release. Gilb. Ten. 53. 17. Every partition between coparceners has annexed to it a warranty in law. In all other deeds of partition there is no implied warranty: but it is usual to insert mutual covenants for the title. 18. An agreement by the husbands of two joint tenants to make a partition, and a partition made under such agreement, will not bind the inheritance of the wives. 19. It has been stated, that an agreement to make a partition will operate in equity as a severance of an estate in joint tenancy. 20. By the common law, where a man had the actual possession and right of property in lands, he could only convey them by feoffment with livery. As it frequently happened that the actual possession was in one person, and the right of possession, or right of property, in another; in case the person who had the right of possession, or right of property, was willing to convey those rights to the person who had the actual possession, it was done by a discharge of his right to the person in possession, which species of conveyance acquired the name of a release. A feoffment would, in such case, have been useless; because it could not transfer the possession, as the person was in possession already. 21. A release is therefore a conveyance of a right, Idem. to a person in possession. Thus, where a man was Tit. 29. c. 1. disseised, the disseisor acquired the possession; and the right of possession and property remained in the disseisee. Now if the disseisee agreed to transfer his rights to the disseisor, the proper mode of carrying such an agreement into execution was by a release; for the disseisor being already in possession, it would have been useless to have made him a feoffment. 22. A release is also the giving or discharging of a 1 Inst. 264 d. right of action, which a man hath, or may claim against another. Words. 23. The operative words of a release are, remisisse, Operative relaxasse, et quietum clamasse; remise, release, and 1 Inst. 264 b. for ever quit claim. Besides which, there are other, words such as, renuntiare, acquietare. Where a lessor granted to a lessee for life that he should be discharged the rent, this was held to amount to a release. 1 Inst. 291 b. 24. Littleton says, a release of all demands is the $ 508. best and strongest release. Lord Coke observes, that the word demand is the strongest word in the law, except the word claim; that a release of all demands discharges all sorts of actions, rights, and titles, conditions, before and after breach, executions, appeals, rents of all kind, covenants, contracts, recognizances, statutes, &c. leases enure. 25. Releases of land, in respect to their operation, How Reare divided into four sorts. 1. Releases that enure by way of mitter l'estate 2. Releases that enure by way of mitter le droit. 3. Releases that enure by enlargement; and 4. Releases that enure by extinguishment. tate. 26. When two or more persons become seised of Mitter L'Esthe same estate by a joint title, either by contract or Lit. § 304. descent, as joint tenants or coparceners, and one of 1 Inst. 273 b. Gilb. Ten. 72. Gilb. Id. 1 Inst. 273 b. them releases his right to the other, such release is said to enure by way of mitter l'estate. For where two several persons come in by the same feudal contract, one of them may discharge to the other, the benefit of such contract, by a release; because no notoriety is needful, for there was a sufficient notoriety in the prior feudal contract. Thus two coparceners come into one entire feud, descending from their ancestor; they may therefore release privately to each other, because they take by the former descent, which established them in possession 'without notoriety. But since coparceners do also transmit distinct estates to their children, they may pass their estates by distinct feoffments. 27. As to joint tenants; they can only pass their estates to one another by release; for they all come in by the first feudal contract, and therefore a second feoffment cannot give any farther title, or notoriety; because every person is supposed to be in by his elder title; which in the case of joint tenants is the original feoffment; so that a second feoffment would be useless. 28. In consequence of the privity which must necessarily exist in releases that enure by way of mitter l'estate, a fee will pass by such a release, without any words of limitation. For the parties are not in by the release, but by the original feudal contract, which passed an inheritance; and the release only discharges the pretensions of one of them to the other. So that where one joint tenant or coparcener releases to the other, the releasee is in by the original conveyance; and such release is not considered as an alienation. 29. One tenant in common cannot release to his companion, because they have distinct freeholds; but they must pass their estates by feoffment. For as they were created by different acts, and different liveries, they must also pass to each other by distinct liveries. . Droit. 55. 30. Releases are said to enure by way of mitter le Mitter le droit, where a person who has been disseised, releases Lit. § 466. to the disseisor, or to the heir or feoffee of the dis- Gilb. Ten, seisor; who being in possession, is therefore capable of taking a release of the right; as in cases of this kind nothing but the bare right passes, the release is said to enure by way of mitter le droit. હુ 31. No words of limitation are necessary in a re- Lit. § 467. lease of this kind: for if a release of right be made to a person seised in fee, for a day or an hour, it will be as strong as if it were made to the releasee and his heirs for ever. ment. 32. Releases enure by way of enlargement of estate, Enlargewhen the possession and inheritance are separated for Lit. 465. a particular time; and he who has the reversion and 1 Inst. 272 b. inheritance, releases all his right and interest in the lands, to the person who has the particular estate. Such releases are said to enure by way of enlargement of estate; and to amount to a grant and attornment : because they transfer the legal estate to the releasee, as effectually as a feoffment with livery. 33. To render this release good, it is necessary that there should be a privity of estate between the releasor and the releasee; and also that the releasee should have such an estate as is capable of being enlarged. 34. With respect to privity of estate, if a person 1 Inst. 273 a. makes a lease for years, the lessee is of course capa ble of taking a release from the lessor, because there is a privity between them. It should however be Lit. § 459. observed, that in this case the lessee must have en- 1 Inst. 270 a. |