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children of my well-beloved sister Jane Kirby, and for want of such issue, then to the younger children of my well-beloved uncle John Wilkinson of North Dalton aforesaid, and for want of such younger children, then the said estate above-mentioned to be free from the payment of the above-named sum of £200. Then the releasor covenants that he is lawfully seised in fee, and that he hath good right and full power to convey the premises to the said Chr. Kirby, and also that it may and shall be lawful to and for the said Chr. Kirby, or the said John Wilkinson the younger, from and after the death of him the said Thomas Kirby, peaceably and quietly to have, hold, use, occupy, possess and enjoy the said messuage, lands and premises, with the appurtenances, not only without the lawful let, suit, &c. of him the said Thomas, but all others claiming under him, &c. free from all incumbrances. Then it is covenanted by all the parties, that all fines and recoveries and deeds of the premises levied, suffered or executed by the parties, or any of them, or by any other persons, shall be and enure to the use of the said Chr. Kirby and his heirs of his body lawfully begotten, and for want of such issue, then to the use of the said John Wilkinson junior, his heirs and assigns for ever, according to the true intent of these presents. In witness, &c. executed by Thomas Kirby.
It further appeared in evidence, that Chr. Kirby on the 10th of November, 1733, paid to the said Thomas Kirby £20 in money, and gave him his note for £80 payable to the said Thomas Kirby, who signed a receipt on the backside of the said deed of release in these words, viz. Received the day and year within written of the within named Chr. Kirby the sum of one hundred pounds, being the full consideration-money within mentioned to be paid to me. I say received by me Thomas Kirby. Witness, M. J. S. T.
It further appeared in evidence that Chr. Kirby died without issue in 1740, and that John Wilkinson the lessor of the plaintiff is the same John Wilkinson named in the deed of release, but it did not appear that the said John Wilkinson had notice of the said deeds of lease and release until a short time before this ejectment was brought.
This being the case for the consideration of the court, the general question is, whether the lessor of the plaintiff has a title to recover upon the lease and release.
It has been argued at the bar three times, the first time by Serjeant Willes for the lessor of the plaintiff, and Serjeant Poole for the defendant, and the second and third times (because of a new judge) by Serjeant Hevit for the plaintiff, and Sir Samuel Prime, the king's first serjeant, for the defendant.
After time taken to consider, the court were all of opinion that the release was void as a common law conveyance, it being to convey a freehold to commence in futuro, but that it should have the effect and operation of a covenant to stand seised to uses ; and in Hilary term 31 Geo. 2, Lord Chief Justice WILLES gave the judgment of the whole court for the plaintiff.
WILLES, C. JUSTICE. It is admitted and agreed on all hands that this deed is void as a release, because it is a grant of a freehold to commence in futuro; and therefore the only question is, whether it shall take effect as a covenant to stand seised to uses ; and we are all of opinion that it shall (my brother Bathurst, not being here, authorized me to say he is of the same opinion).
Many cases have been cited on both sides, some of which are very inconsistent with one another, and to mention them all, would rather tend to puzzle and confound, than to illustrate the matter in question ; and therefore I shall only take notice of those things we think most material, and of some few cases nearest in point for our judgment.
It appears from the cases upon this head, in general, that the judges have been astuti to carry the intent of the parties into execution, and to give the most liberal and benign construction to deeds ut res magis valeat quam pereat. I rely much upon Sheppard's Touchstone of Common Assurances, 82, 83 (which is a most excellent book), where he sars, when the intent is apparent to pass the land one way or another, there it may be good either way.
By the word intent, is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any particular mode or form of conveyance, but an intent that the land shall pass at all events one way or other.
Lord Hobart (who was a very great man) in his Reports, fo. 277, says: “ I exceedingly commend the judges that are curious and almost subtil (astuti) to invent reason and means to make acts according to the just intent of the parties, and to avoid wrong and injury, which by rigid rules might be wrought out of the Act;” and my Lord Hale in the case of Crossing and Scudamore, 1 Vent. 141, cites and approves of this passage in Hobart.
Although formerly, according to some of the old cases, the mode or forın of a conveyance was held material, yet in later times, where the intent appears that the land shall pass, it has been ruled otherwise ; and certainly it is more considerable to make the intent good in passing the estate, if by any legal means it may be done, than by considering the manner of passing it, to disappoint the intent and principal thing, which, was to pass the land. Osman and Sheafe, 3 Lev. 371. Upon this ground we go.
We are all of opinion that in this case there is every thing necessary to make a good and effectual covenant to stand seised to uses. First, here is deed. Se dly, here are apt words, the word grant alone would have been sufficient, but there are other words besides, which are material, viz. A covenant that the grantor has power to grant, and a covenant that all fines, recoveries, &c. of these lands shall enure to the uses in the deed. Thirdly, the covenantor was seised in fee. Fourthly, here appears a most plain intent that Wilkinson the lessor of the plaintiff should have the lands in case Chr. Kirby died without issue. And lastly, here is a proper consideration to raise an use to the lessor
of the plaintiff, for the covenantor in the deed names him to be the eldest son of his well-beloved uncle ; these are all the circumstances necessary to make a good deed of covenant to stand seised to uses.
In support of their opinion the Ch. Justice only cited and observed upon these cases, viz. Crossing and Scudumore, 1 Mod. 175; 2 Lev. 9; 1 Vent. 137; Walker and Hall, 2 Lev. 213; Coultman and Senhouse, Tho. Jones, 105; Carth. 38, 39; Baker versus Hil., 2 W. & M. B. R.; Osman and Sheafe, 3 Lev. 370.
The C. Justice lastly cited two of the strongest cases mentioned for the defendants, as Hore and Dix, 1 Sid. 25 ; Samon and Jones, 2 Vent. 318, and said he did not (for his own part) understand them, and that if he had sat in judgment in those cases, he should have been of a different opinion in both; however, he said the present case differed from these two cases. Lastly, he said the whole court were clear of opinion that a man seised, might covenant to stand seised to the use of another person after the covenantor's death. Postea delivered to the plaintiff.
LEASE AND RELEASE. “It was not long, however, before a loophole was discovered in this latter Statute (St. of Enrolment), throngh which, after a few had ventured to pass, all the world soon followed. It was perceived that the Act spoke only of estates of inheritance of freehold, and was silent as to bargains and sales for a mere term of years, which is not a freehold. A bargain and sale of lands for a year only, was not therefore affected by the Act, but remained still capable of being accomplished by word of mouth and payment of money. The entry on the part of the tenant, required by the law, was supplied by the Statute of Uses ; which, by its own force, placed him in legal intendment in possession for the same estate as he had in the use, that is, for the term bargained and sold to him. And as any pecuniary payment, however small, was considered sufficient to raise a use, it followed that if A., a person seised in fee simple, bargained and sold his lands to B. for one year in consideration of ten shillings paid by B. to A., B. became, in law, at once possessed of an estate in the lands for the term of one year, in the same manner as if he had actually entered on the premises under a regular lease. Here then was an opportunity of making a conveyance of the whole fee simple, without livery of seisin, entry or enrolment. When the bargain and sale for a year was made, A. had simply to release by deed to B. and his heirs his (A.’s) estate and interest in the premises, and B. became at once seised of the lands for an estate in fee simple. This bargain and sale for a year, followed by a release, is the modern conveyance by lease and release, -- a method which was first practised by Sir Francis Moore, serjeant at law, at the request, it is said, of Lord Norris, in order that some of his relations might not know what conveyance or settlement he should make of his estate ; and although the efficiency of this method was at first doubted, it was, for more than two centuries, the cominon means of conveying lands in this country. It will be observed that the bargain and sale (or lease, as it is called) for a year derived its effect from the Statute of Uses; the release was quite independent of that Statute, hav. ing existed long before, and being as ancient as the common law itself. The Statute of Uses was employed in the conveyance by lease and release only for the purpose of giving to the intended releasee, without his actually entering on the lands, such an estate as would enable him to receive the release. When this estate for one year was obtained by the lease, the Statute of Uses had performed its part, and the fee simple was conveyed to the releasee, by the release alone. The release would, before the Stat. ute of Uses, have conveyed the fee simple to the releasee, supposing him to have obtained that possession for one year, which, after the Statute, was given him by the lease. After the passing of the Statute of Frauds, it became necessary that every bar.
[Reported 1 Co. 175.] The case in an information exhibited in the Court of Wards by Richard Kingsmill, Esq. attorney of the same court, against the Lady Anne Sharington, late wife of Sir Hen. Sharington, Knt. and John Talbot, Esq. and Oliff his wife, one of the daughters and heirs of the said Sir Henry Sharington, which was resolved Hil. 24 Eliz. and afterwards Hil. 26 Eliz. adjudged in the Court of Common Pleas, rot. 745, between Anthony Mildmay, Esq. plaintiff, and Roger Standish, Gent. defendant, in an action upon the case for slandering his title, &c. which judgment was M. 26 & 27 Eliz. rot. 35, affirmed in the King's Bench, in a writ of error, and was in effect thus : The said Sir Henry Sharington having & wife the said Dame Anne, and three daughters, Grace married to the said Anthony Mildmay, Ursula married to Thomas Sadler, Esq. and Oliff married to the said John Talbot, by indenture bearing date 20 Augusti 15 Eliz. made between the said Sir Henry Sharington of the one part, and Edmund Pirton and James Paget, Esqrs. of the other part, in consideration of a jointure for his wife, for the advancement of his issue male of his body, if he should have any, and for the advancement of his said three daughters and the heirs of their bodies, if he should have no heir male of bis body, and for the continuance of his land in his blood, and for other good and just considerations did covenant to stand seised of six hundred acres of land (exempli gratia) to the uses, intents, and purposes, and under the proviso following, scil. of all to the use of himself for his life, and after for 300 acres of land, in certain, to the use of his wife for her life for her jointure; and of the other 300 acres after his death, and of the said 300 acres limited for the jointure of the wife after their deaths to the use of the heirs males of his body begotten; and for default of such issue, then for the 300 acres not being limited for jointure, &c. to the use of his three daugh
gain and sale of lands for a year should be put into writing, as no pecuniary rent was ever reserved, the consideration being usually five shillings, the receipt of which was acknowledged, thongh in fact it was never paid. And the bargain and sale, or lease for a year, was usually made by deed, though this was not absolutely necessary. It was generally dated the day before the date of the release, though executed on the same day as the release, immediately before the execution of the latter." Wms. Real Prop. (13th ed.) 187-189.
ters severally by themselves, and to the heirs of their bodies; and for default of such issue, to the use of the right heirs of the said Sir Henry, with like limitation of the other 300 acres to them of the like estate, with the reversion to his right heirs. And if any of his said three daughters should die without issue, then her portion should be by moieties to the survivors of the like estate, ut supra, with remainder ut supra; with proviso for the three several husbands of the said three daughters to have several portions for their lives, if they should survive their wives, and should not be entitled to be tenants by the curtesy, with this proviso in these words following, scil. Provided always, and it is covenanted and agreed between all the said parties, that it shall be lawful for the said Sir Henry by his will in writing to limit any part of the said lands to any person or persons for any life, lives, or years, for the payment of his debts, performing of his legacies, preferment of his servants, or any other reasonable considerations as to him shall be thought good, and all persons thereof seised, to stand seised thereof to the use of such persons and for such interests as shall be so limited by his will. After which the said Ursula died without issue, Grace and Oliff surviving, whereby her portion by moieties came to them: and afterwards the said Sir Henry by his will in writing for the advancement of his daughter Oliff, and of her husband, and of the heirs of the body of the said Oliff, limited a great part, limited by the indenture for the portion of Grace, after the death of his wife, and another great part of land which remained to her by the death of the said Ursula, to the said Oliff and her husband, and to the heirs of the body of Oliff for 1000 years without reservation of any rent; and afterwards the said Sir Henry died without issue male, and whether this limitation for 1000 years being made for the advancement of his daughter Oliff and her husband, and the heirs of the body of the said Oliff, be good in law by force of the said proviso, was the question. And it was resolved and adjudged by Sir CHRISTOPHER WRAY, Ch. Just. of England, Sir EDM. ANDERSON, Ch. Just. of the Court of Common Pleas, and all the judges of England, that the limitation for 1000 years was void, and not warranted by the said proviso; and in this case five points were resolved.
First, that an use cannot be raised by any covenant or proviso, or by bargain and sale upon a general consideration : and therefore, if a man by deed indented and enrolled according to the Stat. for divers good considerations bargains and sells his lands to another and his heirs, nihil operatur inde ; for no use shall be raised upon such general consideration, for it doth not appear to the court that the bargainor hath quid pro quo, and the court ought to judge whether the consideration be sufficient or not; and that cannot be when it is alleged in such generality. But note reader, the bargainee in such case may aver that money or other valuable consideration was paid or given, and if the truth be such, the bargain and sale shall be good. So if I by deed covenant with J. S. for divers good considerations, that I and my heirs will stand seised to the use of him and his heirs, no use without a spe.