Exchange. § 62. 1 Inst. 51. b. 1 Inst. 50. b. Lit. § 64, 5. An exchange is a mutual grant of equal interest, the one in consideration of the other. "As if (says Littleton) there be two men, and each of them is seised of one quantity of land in one county, and the one granteth his land to the other, in exchange for the land which the other hath; and in like manner the other granteth his land to the first grantee, in exchange for the land which the first grantor hath." 2. There are five circumstances necessary to an exchange. 1. That the estates given be equal. II. That the word excambium, exchange, be used; which cannot be supplied by any other word; or described by any circumlocution. III. That there be an execution by entry, or claim, in the life of the parties. IV. That, if it be of things that lie in grant, it be by deed. v. That if the lands lie in several counties, it be by deed indented; or if the things.lie in grant, though they be in one county. 3. With respect to the first of these circumstances, it is only necessary that the equality be in the quantity of the estates exchanged; as an estate in fee for an estate in fee; an estate for life, for an estate for life; and not in the value, quality, or manner of the estate. Therefore an estate in joint tenancy may be exchanged for an estate in common. So lands may be exchanged for rents, commons, or any other inheritance concerning lands. And it is said in Bustard's case that an es- 4 Rep. 122. tate in reversion, expectant on an estate for life, may be given in exchange for land in possession; for in such case the parties are not deceived. Cro. Eliz. 902. 10 Vin. ab. 131. 4. An estate tail may be exchanged for an estate 1 Inst. 50. b. in fee, which will continue good till avoided by the issue in tail. A bass fee may be exchanged for an estate in fee simple. A man may give an estate for the life of the donee in exchange for an estate for another's life; for the estates are equal, both being estates of freehold. Roll says that an estate for three lives may be given in exchange for an estate for one life, for both are estates of freehold, and so equal; and it has Tit. 4. been stated that an exchange between a tenant in tail after possibility of issue extinct, and a bare tenant for life, is good; for with respect to duration, their estates were equal. Touch. 295. 5. With respect to the necessity of the word ex- Perk. § 53. change, it is said by Perkins, and also in the Touchstone, that the word permutatio, or some other word of like effect, may supply it. But if A., by deed indented, give to B. an acre of land in fee simple, or for life, and by the same deed B. gives to A. another acre of land in the same manner, this cannot enure as an exchange; and therefore if there be no livery of seisin it would be utterly void. 1 Rep. 98. b. 6. An exchange must still be executed by entry in Lit. § 52. the lifetime of the parties, for as livery of seisin is not necessary, the parties have no freehold, in deed or in law, in them, till entry. Therefore, if both the parties die before the entry of either, the exchange is void; for the heir of one cannot enter and take it as a purchaser, because he is named only to take it by way of limitation of estate, in course of descent. But if one enters, and the other dies before entry, his heir may enter. Ante, c. 2. Who may exchange. 1 Inst. 50. b. 51. b. Anom. 1 Leon. Tit. 35. Further's case, 7. Since the statute of frauds every exchange must be by deed in writing; and where an exchange is made by lease and release containing mutual conveyances to the parties, as is now the general practice, no entry is necessary, for the statute of uses executes the possession; and all incidents annexed to an exchange at common law will be preserved. 8. In every deed of exchange there is an implied warranty, arising from the word excambium, of which an account will be given in a subsequent chapter of this title. 9. All persons who are capable of conveying their lands by any common assurance, may of course exchange them with others. If an infant exchanges lands and enters on those taken in exchange, and continues to hold them after he attains his full age, the exchange becomes perfect; for it was not originally void, because the entry of the infant was equivalent to livery; as well as in respect to the recompense; but only voidable. 10. If husband and wife exchange the lands of the wife, for other lands; the wife may, after her husband's death, avoid the exchange, though she should join with her husband in a fine of the lands taken in exchange. But if the wife agrees to the exchange, after her husband's death, she can never avoid it. 11. After the statutes 1 and 13 Eliz., no exchange Noy. 5. ante, of lands belonging to the church, by an ecclesiastic, c. 2. § 11. bound the successor, though a full equivalent were given. But now it is otherwise. Can only be be ties. 1 Inst. 50. b. a. i. 12. Littleton speaks of an exchange as of a transtween two par action between two persons; and Mr. Hargrave says it was held in a late case, that an exchange, in the strict legal sense of the word, could not be between three parties, the principle of it not being applicable to more than two distinct contracting parties; for want of the mutuality and reciprocity on which its operation so entirely depends. For, first, the consi deration of an exchange, and the implied warranty tö 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. 13. Although there cannot be more than two dis- 1 Inst. 51. a. tinct parties to an exchange, yet there may be more 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, 14. It has been stated that joint tenants, coparce- Partition. ners, 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, which must have been executed by entry; but now it is usual for the several parties mutually to convey to each other the different estates which they are to take in severalty, under the partition. 15. By the common law, coparceners, being compellable to make partition, might have done it by parol only; but joint tenants, and tenants in common, must have done it by deed. The statute of frauds Ante, c. 3. §1. has abolished this distinction, and made a deed equally necessary in all cases. 16. Every partition between coparceners has an- Infra, c. 24. Tit. 18. c. 2. -47. c. 48. Idem, § 45. Release. nexed 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. 17 It has been stated, that an agreement by the husbands of two joint tenants to make a partition, and a partition made under such an agreement, will not bind the inheritance of the wives. It has also been observed, that an agreement to make a partition will operate in equity as a severance of an estate in joint. tenancy. 18. By the common law, where a man had the Gilb. Ten. 53. actual possession and right of property in lands, he could only convey them by feoffment with livery of seisin. But as it frequently happened that the actual possession was in one person, and the right of possession, or right of property, in another; where 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 a case, have been useless; for it could not transfer the possession, as the person was in possession already. Idem. Tit. 29. c. 1. 1 Inst. 264. b. 19. A release is therefore a conveyance of a right, to a person in possession. Thus, it has been stated, that where a person was disseised, the disseisor ac-. quired the possession; but 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, the disseisor having already the possession. 20. The operative words of a release are, remisisse, relavasse, et quietum clamasse; remise, release, and for ever quit claim. Besides which, there are other words, such. as renuntiare, acquietare. And where a lessor granted |