much, as it is held in Bedel's Case, in the Seventh Part of my Reports, 40 b. So if a man for money aliens and grants land to one and his heirs, or in tail, or for life, by deed indented and enrolled, it amounts to a bargain and sale, and the land shall pass without any livery and seisin. And at the common law before the Statute of 27 H. 8 of Uses, if a man for money had aliened and granted lands to one and his heirs, &c. by that the use of the land should pass, for it is a full bargain, and all this was unanimously agreed; but forasmuch as the intention of the parties is the creation of uses, if by any clause in the deed it appears that the intent of the parties was to pass it in possession by the common law, there no use shall be raised; and therefore if any letter of attorney be in the deed or covenant to make livery of the lands, according to the form and effect of the deed, or other such like, there it shall not pass by way of use; quia, verba intentioni non e contra debent inservire; et verba debent intelligi, ut aliquid operentur.1 But in the case at bar, the intent of the grantor may be well collected, that he did intend that the grant should take effect presently, and should not depend upon any subsequent attornment; for the rent reserved thereupon was payable presently; and therefore it will be reasonable, that Tho. Powys the lessee should have the rent reserved on the first lease for lives presently; and that he cannot have before attornment (which peradventure will never be made) and eo potius because the said Thomas Powys has no means to compel the first lessees to attorn; but if it shall pass as a bargain and sale, it shall be presently executed by the Statute of 27 H. 8, for there needs no enrolment in this case, because but a term for years passes, and no estate of freehold, and there needs no attornment, because it is executed by the Statute. And by this construction every one will have remedy for that which he ought to have. Vide Sir Rowland Heyward's Case in the Second Part of my Reports, fol. 35 b.

1 "In Anon. 3 Leon. 16, it was determined to the contrary. In that case, A. by deed indented, conveyed in the following words: 'I the said A. have given, granted, and confirmed, for a certain piece of money, &c.,' the habendum was to the feoffee with warranty against A. and his heirs; and there was a letter of attorney to make livery and seisin. The deed was enrolled within one month after the making of it; and the attor ney after four months from the delivery made livery of seisin. It was the opinion of the whole court, that the conveyance should operate as a bargain and sale. Cruise Dig. 107 (3d ed.); Sanders on Uses, vol. ii. p. 48." Note by Fraser.

Vid. 4

LUTWICH v. MITTON.

COURT OF WARDS. 1620.

[Reported Cro. Jac. 604.]

Ir was resolved by the two Chief Justices, MONTAGUE and HOBART, and by TANFIELD, Chief Baron, that upon a deed of bargain and sale for years of lands whereof he himself is in possession, and the bargainee never entered; if afterwards the bargainors make a grant of the reversion (reciting this lease) expectant upon it to divers uses, that it is a good conveyance of the reversion; and the estate was executed and vested in the lessee for years by the statute; and was divided from the reversion, and not like to a lease for years at the common law; for in that case there is not any apparent lessee until he enters: but here, by operation of the Statute, it absolutely and actually vests the estate in him, as the use, but not to have trespass without entry and actual possession: wherefore they would not permit this point to be further argued.

THE case was: Edward Hudson being tenant in tail, remainder to William, his brother, to make a tenant to a præcipe to suffer a recovery, makes a lease to one Pepes for six months, and upon that a release, and then suffers a recovery. The plaintiff claimed under the

remainder-man.

The question was only upon the lease for six months, the words being, that he did "demise, grant, and to farm let, the lands in question to Pepes, habend' for six months, rendering a pepper-corn, if demanded."

The question was, whether this pepper-corn rent was a sufficient consideration to make the lease operate by virtue of the statute, so that the lessee should be said to be in possession, so as to be capable to take a release before entry?

For it was agreed by all, if it did operate only as a lease at common law, that the party was not capable of taking an enlargement of his estate by a release until actual entry, according to 1 Inst. 46.

1. And it was argued by Stroud, that this is only a lease at common law; for the words "demise, grant, and to farm let," are words used

at the common law; and there is no word of consideration, nor of bargain and sale, in the deed, so that it cannot be intended that the parties meant that it should operate by way of use.

2. This is an executory consideration, and it is also contingent; for this rent of a pepper-corn is not to be paid, unless it be demanded, which is uncertain whether it will or not; besides, it is not payable presently, and a future consideration shall never raise a present use; and that is the reason of the Lord Paget's Case, Moor. 194; 1 Co. 154; 1 Leon. 194; no use did rise there, because the consideration of payment of his debts was executory, and was no present consideration. Vide Cro. Eliz. 378; 6 Co. 15.

3. The consideration of a pepper-corn is of no value to raise an use; and therefore if an infant make a lease, rendering a pepper-corn, it is a void lease. 43 Ed. 3; Fitz. Entr. 26.

But as to this point all the court, except NORTH, C. J., did incline, that this lease did operate by the Statute.

For, as to the first objection, they said, it had been often adjudged, that, though there were not the words "bargain and sell," yet it would operate by way of use, there being a sufficient consideration. 8 Co. 93.

2. As to the second objection, they held, that though this rent was to be paid futurely, yet it was a present duty; and the obligation to pay it was present, for "yielding and paying" makes a covenant. And NORTH said, that where things are done in the same instant, they would transpose them, and suppose a precedency, it being to support common assurances; and so they might suppose the covenant to pay the rent to precede the raising of the use, and then the consideration would be executed.

And NORTH said, 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.

3. As to the third they all held, that the value of the consideration was not material; for it is usual, if an estate be of the value of £1,000 per annum, to make 5s. the consideration in a bargain and sale for a year; and by Porter's Case, 1 Co. 24, a penny is sufficient to alter the use of a feoffment, and to cause the feoffee to be seised to his own use; and so in the case of Sutton's Hospital, 10 Co. 34.

And as to the lease of an infant, reserving a pepper-corn, that shall be a void lease, because it appears to the court, that there is no proportionable consideration.

And NORTH said, that if there had appeared any intent of the parties, that it should operate by way of use, he should not have doubted of the case, but the intent ought to appear; and he said, in the case of Garnish v. Wentworth, tried before the Lord Chief Justice Bridgman, a conveyance was endeavoured to be set up by a covenant to stand seised, by reason that the party was related to him that made it, though it were nine degrees off; and Bridgman said in that case, it were wor

thy of consideration, whether the use should rise, because the party that made it did not know of the relation, and so could not intend it. But that point was not determined, because upon examination it appeared, that there was no relation in the case.

And in the case of Rigby and Smith, Cro. Car. 529, though the express consideration be natural love to his children, yet the party being his brother, to whom the conveyance was made, and part of the consideration being to settle his lands in his blood, though that particular relation was not named, it was well enough, because it seemed to be pointed at. Vide 7 Co. 39.

And they said, that the very tenure was sufficient to change an use, or at least to keep it from resulting; and therefore, if a lease be made without consideration, or reservation of rent, the use shall not result, as it shall in case of a feoffment, because there is no tenure.

And WYNDHAM said, that although it might not be a consideration to raise an use of a freehold, where the deed is to be enrolled, because by the Statute it is to be a valuable consideration, yet it might serve in case of a lease for years.

And whereas it was objected, that it ought to be money for the consideration, it was said, though it should not pass by bargain and sale, yet the use might rise by a covenant to stand seised well enough.

And NORTH said, that if the truth of this case had been found, there would have been no question in it; for this recovery was to support a mortgage, though it was not so found, and that would have been a sufficient consideration.

And NORTH said, that this conveyance by lease and release was first invented by Sir Francis More, for formerly they used to make a lease, and the lessee used to go and enter, and the same day they made the release.

Another point was stirred, viz., that in case there were no good tenant to the præcipe, yet he in remainder being heir to the tenant in tail, should be estopped, according to the opinion of Plow. Manxell's Case; but that opinion of Plow. was denied by the court, according to 3 Co. 6; for if that were law, then there need never be any lawful tenant to the præcipe, which the law requires; because by the judgment the tenant is to be turned out of possession; and though all are estopped that claim under the parties to the recovery, yet the issue in tail and the remainder are not, because they claim paramount from the donor.

Another point, was, here being a special conclusion made, whether the judges should be bound by this special conclusion of the verdict; for it was held in the case of Lane v. Cooper, Moore's Reports, that they should not; but it is said, and so held, that since that the law had been held contrary. 5 Co. 95; 2 Roll. 701.1

1 s. c. 2 Mod. 249.

EJECTMENT for lands in Yorkshire. Upon the trial of this cause it appeared in evidence, that Thomas Kirby being seised in fee of the lands in question made and executed certain deeds of lease and release. The lease dated November 9, 1733, made between the said Thomas Kirby of the one part, and Chr. Kirby his brother of the other part, whereby it is witnessed that the said Thomas Kirby, in consideration of 58. did grant, bargain and sell to the said Chr. Kirby, his executors, alministrators and assigns, the lands in question; to have and to hold the same unto the said Chr. Kirby, his executors, administrators and assigns, from the day before the date thereof for the term of one year under a pepper corn rent, to the intent that by virtue of these presents, and by force of the Statute for transferring uses into possession, he the said Christopher may be in the actual possession of all the premises, and be enabled to take and accept of a grant and release of the reversion and inheritance thereof to them and their heirs, to, for and upon such uses, intents and purposes, as in and by the said grant and release shall be directed or declared. In witness, &c. executed by Thomas Kirby.

The release dated November 10, 1733, made between Thomas Kirby of the one part, and Chr. Kirby his brother of the other part, witnesseth that for the natural love he beareth towards his said brother, and for and in consideration of £100 to the said Thomas Kirby paid by the said Chr. Kirby, he the said Thomas Kirby hath granted, released and confirmed, and by these presents doth grant, release and confirm unto the said Chr. Kirby in his actual possession thereof now being, by virtue of a bargain and sale for one whole year to him thereof made by the said Thomas Kirby, by indenture dated the day next before the day of the date hereof, and by force of the Statute made for transferring of uses into possession, after the death of the said Thomas Kirby, all that one close, &c. (the premises without any words of limitation to the releasee;) To have and to hold the said premises unto the said Chr. Kirby and the heirs of his body lawfully begotten, and after their decease to John Wilkinson, eldest son of my well-beloved uncle John Wilkinson of North Dalton in the county of York, gentleman, to him and his heirs and assigns, and to the only proper use and behoof of him the said John Wilkinson the younger, his executors, administrators or assigns for ever, he the said John Wilkinson the younger paying or causing to be paid to the child or children of my well-beloved brother Stephen Kirby the sum of £200 and for want of such child or children, then to the child or