months, amount to a good bargain and sale, to ground a release. 6 Mod. 44. 6. The recital of a lease for a year, in a deed of 2 Lev. 108. release, is good evidence of such lease against the releasor, and all claiming under him; but not against strangers; without proving that there was such a deed, and that it was lost or destroyed. Who may con vey by, and what. 7. Every person who is capable of being seised to the use of another, may convey by this assurance. But neither the king, nor a queen regnant, nor a corporation, can convey in this manner, for the reason already mentioned. And every species of property Ante, c.9. that is capable of being conveyed to uses, may be the subject of a lease and release. mainder and re Cases and opinions, vol. 2. 144. 1 Inst. 270.a. 8. Not only estates in possession, but estates in Estates in re-. remainder and reversion, may be conveyed by lease version." and release: this point is fully proved by Mr. Booth, in an opinion which has been printed. He admits Lord Coke's position that a release cannot work without a possession; but contends he only means that the estate upon which the release is to work, must be a vested estate; for in the same folio Lord 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. 9. In the case of Shortridge v. Lamplugh, which will be stated in a subsequent part of this chapter, the § 14. 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. 10. 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 : n. 3. 1 Inst. 270. a. say that the releasee is in the actual possession of the 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. Incorporeal hereditaments. What consi. deration necessary. Barker v. Keate, 2 Mod. 252. Shortridge v. 798. Does not de 11. Incorporeal hereditaments, such as advowsons, tithes, rents, &c. may be conveyed by lease and release, for they are expressly named in the statute of uses, or comprised under the general word, heredita ments. 12. Although no use could be raised on a bargain and 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 it was held that even a reservation of a peppercorn rent was a sufficient consideration to raise a use in a bargain and sale to ground a release. 13. With respect to the deed of release to the bargainee for a year, there is no necessity for any consideration, because it operates as a common law conveyance. And in the case last cited the release was expressed to be made for divers good considerations, which was held sufficient. 14. In a writ of error from the Common Pleas, 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. 15. A conveyance by lease and release does not vest any estate. devest any estate, or create a discontinuance or for feiture. Thus 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,- 606. Rem. 473. 383. 16. This conveyance will not, for the same reason, Fearne, Cont. destroy a contingent remainder: therefore if a person Willes Rep. 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. use results on 7 Mod. 76. 17. A release may be to uses, as will be shown in Whether the the next chapter; but it has been doubted whether it. there can be a resulting use upon a lease and release. Tit. 11. c. 4. 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, J. 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 of the estate of the lessee, was a good consideration. 18. 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 Sanders on 7 Mod. 77. To whom the title deeds belong. 1 Inst. 6. a. n. 4. a consideration; therefore there could be no ground for contending against the use resulting in this case, as well as upon a feoffment. And Lord Holt and Powell agreed, that if there were a particular use declared on the release, the rest would result. 19. In cases of conveyances derived from the statute of uses, it is said that the feoffees or releasees are entitled to the possession of the title deeds; because 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 that it does not transfer the title deeds. This doctrine is very questionable, as feoffees to uses have only a seisin of an instant, and are never called upon, and could not be 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. Origin and nature of. CHAP. XII. 1. Origin and Nature of. 8. No Consideration necessary. 17. Deeds to declare Uses. 27. Infants. 30. Married Women. 43. Uses may be declared on a 45. The Releasee cannot dissent. SECTION 1. WITH respect to those conveyances derived from the statute of uses, which are said to operate by trans mutation of possession, they owe their effect to the following principles. Where lands are conveyed by T. 11. c. 4. feoffment, fine, or recovery, the legal seisin and estate becomes vested by these conveyances 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. deed or writing. 2. Uses might formerly have been declared by Must be by parol only. But it is enacted by the statute of frauds, 29 Cha. II. c. 5. § 7., "That all declarations or creations of trusts or confidences, of any lands, tenements, or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of none effect." 3. It has been long settled that the word trust, in this statute, comprehends uses. Thus Lord C. J. Holt says "We take trusts and uses to be the same, in Holt's Rep. respect of trusts in their larger extent, and so within 11 Mod. 197. the statute." 4. It was not absolutely necessary, under the words of this act, that a declaration of uses should be. by 736. deed; for Lord Holt has said, that since the statute 7 Mod. 76. of frauds, uses might be declared by writing only, without seal. But there has been another act on this Infra, $ 22. subject, which will be stated hereafter. words neces · 5. No technical words are required in a declaration No technical of uses. Lord Holt has said that it is not even necessary. sary to insert the word use in a declaration of uses of a fine or recovery; for that any kind of agreement Dyer, 166. n. which manifestly shows the intent of the parties will 290. be sufficient. And this is conformable to the law, as Hussey's case, it stood before the statute of frauds; it having been 1 Roll. Ab. 614. 1. Ld. Raym. 3 P. Wms, 209. |