Hore v. Dix, 2 Vent. 319. Sid. 25. 11 Rep. 24. b. 39. b. 7 being chamber-fellows, or entire friends, be sufficient to raise a use. 21. A covenant with a stranger that he shall enjoy the land, to the use of the covenantor's son, will not be good. 22. A., by indenture between him and B. his son of the one part, and two strangers of the other part, in consideration of natural love to his son, gave, granted, and enfeoffed the two strangers, to the use of himself for life, remainder to B. in tail, remainder over; and covenanted with the two strangers, that they should enjoy the said land, to the uses aforesaid. The deed was sealed and delivered, but no livery of seisin was given; nor was there any attornment. Resolved, that no use was raised by this deed; for a covenant with strangers could not raise a use. 23. Where a deed is made in consideration of a sum of money, it will not operate as a covenant to stand seised. Held, 24. A person covenanted by indenture, that in consideration of 201. paid him by his son, he would stand seised to the use of him and his heirs. that the indenture must be enrolled, otherwise nothing would pass for the express valuable consideration Vin. Ab. 196. tolled the tacit implied consideration of blood: and no other consideration could be averred, than was contained in the deed. Contra, 22. 25. In the case of a covenant to stand seised, a use will arise to the persons who are within the consideration; but no use will arise to those who are strangers to it. 26. Tenant in tail, remainder in fee. The person in remainder, to the intent that his lands should continue and remain in his family name and blood, covenanted to stand seised to the use of himself and the heirs male of his body, remainder to the use of his brother in tail, remainder to the use of the queen, her heirs and successors. Resolved, that a use arose to the covenantor in tail, and to his brother; but that no use arose to the queen, for want of a consideration. Cro. Car. 529. 27. P. Risley, by indenture between him and Sir Smith v. Risley, T. D., Sir A. D. T. Risley, his brother, and W. W., covenanted and agreed with them, to stand seised of certain lands, to the use of himself for life, remainder to the use of his wife for life, remainder to the use of the covenantees and their heirs, upon several trusts, for his children. Resolved, that the uses were well raised and vested in T. Risley his brother, he being of the blood of the covenantor; but that no use arose to the other covenantees, they being strangers. Whaley v. 2 Lev. 52. 54. tinues till a use arises. 1 Rep. 154. a. 28. A. covenanted to stand seised to several uses, afterwards to C. for 99 years, if he should so long live, remainder to a stranger for the life of C. to preserve contingent remainders, remainder over. Agreed by all, that the remainder to the stranger was void. 29. In the case of a covenant to stand seised, the The estate conestate continues in the covenantor till a lawful use arises. Thus, if a person makes a feoffment in fee, to the use of A. for life, remainder to the use of B. for life, remainder to the use of C. in fee; if A. refuses, B. shall take the estate presently. For the feoffor, ́by his feoffment, has given all his estate out of him, and all the uses are created out of it, as out of one and the same root; therefore as long as any of the uses can take effect, the feoffor shall not have the land. But in the case of a covenant which raises a use, there the consideration, which is the cause that raises every several use, is several; and all the uses grow and rise out of the estate of the covenantor; therefore if one refuses, he who is next in remainder shall not take the land presently, but the covenantor shall keep it. created by. 30. In consequence of the 4th and 5th sections of Arent may be the statute of uses, a rent may be created by a covenant to stand seised, Rivetts v. God 31. A., in consideration of natural love and affec son, W. Jones, tion, covenanted to stand seised to the use of himself 179. No estate is devested by this assurance, and sale. for life, remainder to B. his son in tail: and to the intent that B. should have a rent issuing out of the lands, during the life of A. Resolved, that B. was well entitled to this rent upon the words of the statute of uses. 32. A bargain and sale, and covenant to stand seised, pass no interest but that which the bargainor or by a bargain or covenantor can lawfully transfer. For as nothing but a use passes by these conveyances, and as no use can be greater than the estate out of which it is creTit. 11.c. 3. ated, where a use is granted for a greater estate than that out of which it is granted, it is merely void; and the statute executes the possession to so much only of the use as is lawfully granted. $ 19. Tit. 16. c. 6. Gilb. Uses, 140. 33. Thus if a tenant for life, with contingent remainders depending on his estate, conveys in fee by bargain and sale, or covenant to stand seised, in fee; the bargainee or covenantee will only take an estate for life; and the contingent remainders will not be destroyed. So if a tenant in tail bargains and sells case, 10 Rep. his estate, or covenants to stand seised of it, in fee simple, the bargainee or covenantee will only acquire a base fee, and the issue in tail may enter on the death of the bargainor. Seymour's 95. 1 Atk. 2. Tit. 2. c. 2. 10. No uses can be declared on these conveyances. Tyrrell's case, 34. No uses can be declared on a bargain and sale, or covenant to stand seised, but to the bargainee or covenantee, because these conveyances only pass a use, and the legal estate and possession is transferred by the operation of the statute; so that a use declared on them is a use upon a use. 35. A widow, in consideration of 400l., bargained and sold to her son all her manors, &c., to hold to him and his heirs, to the use of the widow during her life, &c. It was resolved, that the limitation of the use was void; because a use cannot be engendered on a use. CHAP. XI. Lease and Release. 1. Origin and Nature of. 7. Who may convey by, and what. 8. Remainders and Reversions. 11. Incorporeal Hereditaments. 12. What Consideration necessary. SECTION 1. THERE is a third sort of conveyance usually classed Origin and saunder those deriving their effect from the statute of ture of uses, but of which only one part is derived from that statute, and the other from the principles of the common law. It is called a lease and release, but is in fact a bargain and sale for a year, and a common law release, operating by way of enlargement of estate; and owes its rise to the following circumstances. . 2. The framers of the statute of uses foresaw that freehold estates would thenceforth become transferable by parol only, without any form or ceremony whatever. The statute of enrolments was therefore Ante, c. 9. made in the same parliament, which would have introduced an almost universal register of conveyances of real estates, but for the omission of bargains and sales for terms of years. 3. In the reigns of Hen. VI. and Edw. IV., it was 2 Mod. 252. not unusual to transfer freehold estates in the following manner. A deed of lease was made to the intended purchaser for three or four years; and after he had entered into possession, a deed of release of the inheritance was executed to him, which operated to enlarge his estate into a fee simple. When it was found that the statute of uses transferred the actual possession without entry, the idea of a lease and release was Bac. Ab. Tit. Lease, M. adopted. A bargain and sale for a year was made by the vendor, to the person to whom the lands were to be conveyed; by this a use was raised in the bargainee, 1 Inst. 271, b. without any enrolment, to which the statute transferred the possession. Thus the bargainee became immediately capable of accepting a release of the freehold and reversion; and accordingly a release was made to him, dated the day next after the day of the date of the bargain and sale: all which was considered as equal to a feoffment with livery of seisin. Treat.on capias. Lutwich v. Barker v. Keate, 2 Mod. 249 1 Freem, 251. 2 Mod. 252. 4. Fabian Philips says, this conveyance was first contrived by Serjeant Moore, at the request of Lord Norris, to the end that some of his kindred should not know, by any search of public records, what settlement he should make of his estate. The validity of it was formerly much doubted. Mr. Noy thought that it could not be supported without an actual entry by the bargainee. But it was resolved in 18 Jac. I., by the Chief Justices Montague and Howard, and Chief Baron Tanfield, that upon a deed of bargain and sale for years of land, though the bargainee never entered, if afterwards the bargainor makes a grant of the reversion, reciting the lease, to divers uses, it was a good conveyance of the reversion. And in a subsequent case, where there was a bargain and sale for years, followed by a release, judgment was given"That the lease being within the statute of uses, there was no need of an actual entry, to make the lessee capable of the release; for by virtue of the statute, he shall be adjudged to be in actual possession." This is become the most common assurance for the transfer of freehold estates. 5. It is said by Lord Ch. J. North, that he had known it ruled several times, that a lease and release in the same deed was a good conveyance; for priority should be supposed. And it has been determined, that the words, demise, grant, and to farm let, for six |