.p 295
The Rights of Things.
Book ii.
Ch. 20.

CHAPTER THE TWENTIETH.

OF ALIENATION BY DEED.

IN treating of deeds I fhall confider, firft, their general nature; and, next, the feveral forts or kinds of deeds, with their refpective incidents. And in explaining the former, I fhall examine, firft, what a deed is; fecondly, it's rrquifites; and, thirdly, how it may be avoided.

1.FIRST than, a deed is a writing fealed and delivered by the parties ^a . It is fometimes called a charter, carta, from it's materials; but moft ufually, when applied to the tranfactions of private fubjects, it is called a deed, in Latin factum, xat ecoxny, becaufe it is the moft folemn and authentic act that a man can poffibly perform, with relation to the difpofal of his property; and therefore a man fhall always be eftopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once fo folemnly and deliberately avowed ^b. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each fhould be cut or indented (formerly in acute angles inftar dentium, but at prefent in a waving line) on the top or fide, to tally or correfpond with the other; which deed, fo made, is called an indenture. Formerly, when deeds were more concife than at prefent, it was ufual to write both parts on the fame piece of parchment, with fome word or letters of the alphabet written between them; through which the parchment was cut, either in a ftrait or indented line, in fuch
.{F S}
a Co. Litt. 171.
b Ploed. 434.
.{F E}
a man-
.p 296
The Rights of Things.
Book ii.
Ch. 20.

a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated fyngrapha by the canonifts ^c; and with us chirographa, or hand-writings ^d ; the word cirographum or cyrographum being ufually that which was divided in making the indenture: and this cuftom is ftill preferved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into ufe, without cutting through any letters at all; and it feems at prefent to ferve for little other purpofe, than to give name to the fpecies of the deed. When the feveral parts of an indenture are interchangeably executed by the feveral parties, that part or copy which is executed by the grantor is ufually called the original, and the reft are counterparts: though of late it is moft frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or fhaved quite even; and is therefore called a deed-poll, or a fingle deed ^e.

II. WE are in the next place to confider the requifites of a deed. The firft of which is, that there be perfons able to contract and be contracted with, for the purpofes intended by the deed; and alfo a thing, or fubject matter to be contracted for; all which muft be expreffed by fufficient names ^f. So as in every grant there muft be a grantor, a grantee, and a thing granted; in every leafe a leffor, a leffee, and a thing demifed.

SECONDLY ; the deed muft be founded upon good and fufficient confideration. Not upon an ufurious contract ^g ; nor upon fraud or collufion, either to deceive purchafors bona fide ^h , or juft and lawful creditors ⁱ ; any of which bad confiderations will vacate the deed. A deed alfo, or other grant, made without any confideration, is, as it were, of no effect; for it is conftrued to enure, or to be effectual, only to the ufe of the grantor himfelf^k .
.{F S}
c Lyndew. L. 1. t. 10. c. 1.
d Mirror. C. 2. §. 27.
e Ibid. Litt. §. 371, 372.
f Co. Litt. 35.
g Stat. 13 Eliz. c. 8.
h Stat. 27. Eliz. c. 4.
i Stat. 13 Eliz. c. 5.
k Perk. §. 533.
.{F E}
The
.p 297
The Rights of Things.
Book ii.
Ch. 20.

The confideration may be either a good, or a valuable one. A good confideration is fuch as that of blood, or of natural love and affection, when a man grants an eftate to a near relation; being founded in motives of generofity, prudence, and natural duty: a valuable confideration is fuch as money, marriage, or the like, which the law efteems an equivalent given for the grant ^l ; and is therefore founded in motives of juftice. Deeds, made upon good confideration only, are confidered as merely voluntary, and are frequently fet afide in favour of creditors, and bona fide purchafors.

THIRDLY ; the deed muft be written, or I prefume printed; for it may be in any character or any language; but it muft be upon paper, or parchment. For if it be written on ftone, board, linen, leather, or the like, it is no deed ^m . Wood or ftone may be more durable, and linen lefs liable to rafures; but writing on paper or parchment unites in itfelf, more perfectly than any other way, both thofe defirable qualities : for there is nothing elfe fo durable, and at the fame time fo little liable to alteration; nothing fo fecure from alteration, that is at the fame time fo durable. It muft alfo have the regular ftamps, impofed on it by the feveral ftatutes for the increafe of the public revenue; elfe it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing, but this giving a handle to a variety of frauds, the ftatute 29 Car. II. c. 3. enacts, that no leafe or eftate in lands, tenements, or hereditaments, (except leafes, not exceeding three years from the making, and whereon the referved rent is at leaft two thirds of the real value) fhall be looked upon as of greater force than a leafe or eftate at will; unlefs put in writing, and figned by the party granting, or his agent lawfully aughorized in writing.

FOURTHLY ; the matter written muft be legally and orderly fet forth: that is, there muft be words fufficient to fpecify the agreement and bind the parties : which fufficiency muft be left to
.{F S}
l 3 Rep. 83.
m Co. Litt. 229. F. N. B. 122.
.{F E}
VOL. II.
O o
The
.p 298
The RIGHTS of THINGS
BOOK II
Ch. 20.

the courts of law to determine ⁿ. For it is not abfolutely neceffary in law, to have all the formal parts that are ufually drawn out in deeds, fo as there be fufficient words to declare clearly and legally the party's meaning. But, as thefe formal and orderly parts are calculated to convey that meaning in the cleareft, diftincteft, and moft effectual manner, and have been well confidered and fettled by the wifdom of fucceffive ages, it is prudent not to depart from them without good reafon or urgent neceffity; and therefore I will here mention them in their ufual ^o order.

1.THE premifes may be ufed to fet forth the number and names of the parties, with their additions or titles. They alfo contain the recital, if any, of fuch deeds, agreements, or matters of fact, as are neceffary to explain the reafons upon which the prefent tranfaction is founded: and herein alfo is fet down the confideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted ^p.

2. 3. NEXT come the habendum and tenendum ^q. The office of the habendum is properly to determine what eftate or intereft is granted by the deed: though this may be performed, and fometimes is performed, in the premifes. In which cafe the habendum cannot leffen, but it may enlarge, the eftate granted in the premifes; as if a grant be “ to A and the heirs of his body” in the premifes, habendum “ to him and his heirs for ever,” here A has an eftate-tail, and a fee-fimple expectant thereon ^r. But had it been in the premifes “to him and his heirs,” the habendum would be utterly void ^s; for the larger and more beneficial eftate is vefted in him before the habendum comes, and fhall not afterwards be narrowed, or devefted, by it. The tenendum, “and to hold,” is now of very little ufe, and is only kept in by cuftom. It was fometimes formerly ufed to fignify the tenure, by which the eftate granted was
.{F S}
n Co. Litt. 225.
o Ibid. 6.
p See appendix, N^o. 2. §. 2. pag. V.
q Ibid.
r Co. Litt. 21.
s S Kep. 154.
.{F E}
to
.p 299
The Rights of Things.
Book ii.
Ch. 20.

to be holden ; viz. “tenendum per fervitium militare, in burgagio, in libero focagio, ac.” But, all thefe being now reduced to free and common focage, the tenure is never fpecified. Before the ftatute of quia emptores, 18 Edw. I. it was alfo fometimes ufed to denote the lord of whom the land fhould be holden; but that ftatute directing all future purchafers to hold, not of the immediate grantor, but of the chief lord of the fee, this ufe of the tenendum hath been alfo antiquated; though for a long time after we find it mentioned in antient charters, that the tenements fhall be holden de capitalibus dominis feodi ^t : but, as this expreffed nothing more than the ftatute had already provided for, it gradually grew out of ufe.

4. NEXT follow the terms or ftipulations, if any, upon which the grant is made: the firft of which is the reddendem or refervation, whereby the grantor doth create or referve fome new thing to himfelf out of what he had before granted. As “rendering therefore yearly the fum of ten fhillings, or a pepper corn, or two days ploughing, or the like ^u.” This render, reditus, return, or rent, under the pure feodal fyftem confifted, in chivalry, principally of military fervices; in villenage, of the moft flavifh offices; and, in focage, it ufually confifts of money, though it may confift of fervices ftill, or of any other certain profit ^w. To make a reddendum good, if it be of any thing newly created by the deed, the refervation muft be to the grantors, or fome, or one of them, and not to any ftranger to the deed ^x. But if it be of antient fervices or the like, annexed to the land, then the refervation may be to the lord of the fee ^y.

5. ANOTHER of the terms upon which a grant may be made is a condition; which is a claufe of contingency, on the happening of which the cftate granted may be defeated; as “provided always, that if the mortgagor fhall pay the mortgatee 500/.
.{F S}
t Append. N^o. I Madox. Formul. paffim.
u Append. N^o. II. §. 1. pag. Iii.
w See pag. 41.
x Plowd. 13. 8. Rep. 71.
y Append. N^o. I. pag. I.
.{F E}
O o 2
“upon
.p 300
The Rights of Things.
Book ii.
Ch. 20.

“ upon fuch a day, the whole eftate granted fhall determine,” and the like ^z.

6. NEXT may follow the claufe of warranty; whereby the grantor doth, for himfelf and his heirs, warrant and fecure to the grantee the eftate fo granted ^a. By the feodal conftitution, if the vafal's title to enjoy the feud was difputed, he might vouch, or call, the lord or donor to warrant or infure his gift; which if he failed to do, and the vafal was evicted, the lord was bound to give him another feud of equal value in recompenfe ^b. And fo, by our antient law, if before the ftatute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himfelf and his heirs by certain fervices; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the fervices (which were the confideration and equivalent for the gift) were originall ftipulated to be rendered ^c. Or if a man and his anceftors had immemorially holden land of another and his anceftors by the fervice of homage (which was called bomage aunceftral) this alfo bound the lord to warranty ^d; the homage being an evidence of fuch a feodal grant. And, upon a fimilar principle, in cafe, after a partition or exchange of lands of inheritance, either party or his heirs be cvicted of his fhare, the other and his heirs are bound to warranty ^e, becaufe they enjoy the equivalent. And, fo even at this day, upon a gift in tail or leafe for life, rendering rent, the donor or leffor and his heirs (to whom the rent is payable) are bound to warrant the title ^f. But in a feoffment in fee by the verb dedi, fince the ftatute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs ^g; becaufe it is a mere perfonal contract on the part of the feoffor, the tenure (and of courfe the antient fervices ) refulting back to the fuperior lord of the fee. And in other forms of alienation, gradually introduced fince that fta-
.{F S}
z Append. N ^o. II. §. 2. pag. Viii.
a Ibid. N^o. I. pag. I.
b Feud. l 2. t. 8, &25.
c Co. Litt. 384.
d Litt. §. 143.
e Co. Litt. 174.
f Ibid. 384.
g Ibid.
.{F E}
tute,
.p 301
The Rights of Things.
Book ii.
Ch. 20.

tute, no warranty whatfoever is implied ^h; they bearing no fort of analogy to the original feodal donation. And therefore in fuch cafes it became neceffary to add an exprefs claufe of warranty, to bind the grantor and his heirs; which is a kind of covenat real, and can only be created by the verb warrantizo or warrant ⁱ .

THESE exprefs warranties were introduced, even prior to the ftatute of quia emptores, in order to evade the ftrictnefs of the feodal doctrine of non-alienation without the confent of the heir. For, though he, at the death of his anceftor, might have entered on any tenements that were aliened without his concurrence, yet, if a claufe of warranty was added to the anceftor's grant, this covenant defcending upon the heir infured the grantee; not fo much by confirming his title, as by obliging fuch heir to yield him recompenfe in lands of equal value: the law, in favour of alienations, fuppofing that no anceftor would wantonly difinherit his next of blood ^k; and therefore prefuming that he had received a valuable confideration, either in land, or in money which had purchafed land, and that this equivalent defcended to the heir together with the anceftor's warranty. So that when either an anceftor, being the rightful tenant of the freehold, conveyed the land to a ftranger and his heirs, or releafed the right in feefimple to one who was already in poffeffion, and fuperadded a warranty to his deed, it was held that fuch warranty not only bound the warrantor himfelf to protect and affure the title of the warrantee, but it alfo bound his heir: and this, whether that warranty was lineal, or collateral to the title of the land. Lineal warranty was where the heir derived, or might by poffibility have derived, his title to the land warranted, either from or through the anceftor who made the warranty; as where a father, or an elder fon in the life of the father, releafed to the diffeifor of either themfelves or the grandfather, with warranty, this was lineal to the younger fon ^l. Collateral warranty was where the heir's title to the land neither was, nor could have been, derived from
.{F S}
h Co. Litt. 102.
i Litt. §. 733.
k Co. Litt. 373.
l Litt. §. 703. 706. 707.
.{F E}
the
.p 302
The Rights of Things.
Book ii.
Ch. 20.

the warranting anceftor; as where a younger brother releafed to his father's diffeifor, with warranty, this was collateral to the elder brother ^m. But where the very conveyance, to which the warranty was annexed, immediately followed a diffeifin, or operated itfelf as fuch (as, where a father tenant for years, with remainder to his fon in fee-fimple with warranty) this, being in it's original manifeftly founded on the tort or wrong of the warrantor himfelf, was called a warranty commencing by diffeifin; and, being too palpably injurious to be fupported, was not binding upon any heir of fuch tortious warrantor ⁿ.

IN both lineal and collateral warranty, the obligation of the heir (in cafe the warrantee was evicted, to yield him other lands in their ftead) was only on condition that he had other fufficient lands by defeent form the warranting anceftor ^o. But though, without affets, he was not bound to infure the title of another, yet, in cafe of lineal warranty, whether affets defcended or not, the heir was perpetually barred from claiming the land bimfelf; for, if he could fucceed in fuch claim, he would then gain affets by defcent (if he had them not before) and muft fulfil the warranty of his anceftor: and the fame rule ^p was with lefs juftice adopted alfo in refpect of collateral warranties, which likewife (though no affets defcended ) barred the heir of the warrantor from claiming the land by any collateral title; upon the prefumption of law that he might hereafter have affets by defcent either from or through the fame anceftor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtefy took upon them to aliene their lands with warranty; which collateral warranty of the father defcending upon his fon (who was the heir of both his parents) barred him from claiming his maternal inheritance: to remedy which the ftatute of Glocefter, 6 Edw. I. c. 3. declared, that fuch warranty fhould be no bar to the fon, unlefs affets dedcended from the father. It was afterwards attempted in 50 Edw. III. to make the fame pro-
.{F S}
m Litt. §. 705. 707.
n Ibid. §. 698. 702.
o Co. Litt. 102.
p Litt. §. 711. 712.
.{F E}
vifion
.p 303
The Rights of Things.
Book ii.
Ch. 20.

vifion univerfal, by enacting that no collateral warranty fhould be a bar, unlefs where affets defcended from the fame anceftor ^q, but it then proceeded not to effect. However, by the ftatute II Hen. V11. c. 20. notwithftanding any alienation with warranty by tenant in dower, the heir of the hufband is not barred, though he be alfo heir to the wife. And by ftatute 4 & 5 Ann. c. 16. all warranties by any tenant for life fhall be void againft thofe in remainder or reverfion ; and all collateral warranties by any anceftor who has no eftate of inheritance in poffeffion fhall be void againft his heir. By the wording of which laft ftatute it fhould feem, that the legiflature meant to allow, that the collateral warranty of tenant in tail, defcending ( though without affets) upon a remainder-man or reverfioner, fhould ftill bar the remainder or reverfion. For though the judges, in expounding the ftatute de donis, held that, by analogy to the ftatute of Glocefter, a lineal warranty by the tenant in tail without affets fhould not bar the iffue in tail, yet they held fuch warranty with affets to be a fufficient bar^r : which was therefore formerly mentioned' as one of the ways whereby an eftate tail might be deftroyed; it being indeed nothing more in effect, than exchanging the lands entailed for others of equal value. They alfo held that collateral warranty was not within the ftatute de donis; as that act was principally intended to prevent the tenant in tail from difinheriting his own iffue : and therefore collateral warranty (though without affets) was allowed to be, as at common law, a fufficient bar of the eftate-tail and all remainders and reverfions expectant thereon ^t. And fo it ftill continues to be, notwithftanding the ftatute of queen Anne, if made by tenant in tail in poffeffion : who therefore may now, without the forms of a fine or recovery, in fome cafes make a good conveyance in fee-fimple, by fuperadding a warranty to his grant; which, if accompanied with affets, bars his own iffue, and without them bars fuch of his heirs as may be in remainder or reverfion.
.{F S}
q Co Litt. 373.
p Litt. §. 712. 2 Inft. 293.
s pag. 116.
t Co. Litt. 374. 2 Inft. 335.
.{F E}
7 AFTER
.p 304
The Rights of Things.
Book ii.
Ch. 20.

7. AFTER warranty ufually follow covenants, or conventions; which are claufes of agreement contained in a deed, whereby either party may ftipulate for the truth of certain facts, or may bind himfelf to perform, or give, fomething to the other. Thus the grantor may covenant that he hath a right to convey, or for the grantee's quiet enjoyment; or the like : the grantee may covenant to pay his rent, to repair the premifes, a c^u. If the covenantor covenants for himfelf and his heirs, it is then a covenant real, and defcends upon the heirs; who are bound to perform it, provided they have affets by defcent, but not otherwife : if he covenants alfo for his executors and adminiftrators, his perfonal affets as well as his real, are likewife pledged for the performance of the covenant; which makes fuch covenant a better fecurity than any warranty, and it has therefore in modern practice totally fuperfeded the other.

8. LASTLY, comes the conclufion, which mentions the execution and date of the deed, or the time of it's being given or executed, either expreffly, or by reference to fome day and year before-mentioned ^w. Not but a deed is good, although it mention no date; or hath a falfe date; or even if it hath an impoffible date, as the thirtieth of February; provided the real day of it's being dated or given, that is, delivered, can be proved ^x.

I PROCEED now to the fifth requifite for making a good deed; the reading of it. This is neceffary, wherever any of the parties defire it; and, if it be not done on his requeft, the deed is void as to him. If he can, he fhould read it himfelf : if he be blind or illiterate, another muft read it to him. If it be read falfely, it will be void; at leaft for fo much as is mifrecited : unlefs it be agreed by collufion that the deed fhall be read falfe, on purpofe to make it void; for in fuch cafe it fhall bind the fraudulent party ^y.
.{F S}
u Append. N ^o. II. §. 2. pag. Viii.
w Ibid. pag xiii.
x Co. Litt. 46. Dyer. 28.
y 2 Rep. 3. 9. II Rep. 27.
.{F E}
SIXTHLY,
.p 305
The Rights of Things.
Book ii.
Ch. 20.

SIXTHLY, it is requifite that the party, whofe deed it is, fhould feal, and in moft cafes I apprehend fhould fign it alfo. The ufe of feals, as a mark of aughenticity to letters and other inftruments in writing, is extremely antient. We read of it among the Jews and perfians in the earlieft and moft facred records of hiftory ^z . And in the book of Jeremiah there is a very remarkable inftance, not only of an atteftation by feal, but alfo of the other ufual formalities attending a Jewifh purchafe ^a . In the civil law alfo ^b , feals were the evidence of truth; and were required, on the part of the witneffes at leaft, at the atteftation of every taftament. But in the times of our Saxon anceftors, they were not much in ufe here. For though fir Edward coke ^c relies on an inftance of king Edwayn's making ufe of a feal about an hundred years before the conqueft, yet it does not follow that this was the ufage among the whole nation: and perhaps the charter he mentions may be of doubtful aughority, from this very circumftance, of being fealed; fince we are affured by all our antient hiftorians, that fealing was not then in common ufe. The method of the Saxons was for fuch as could write to fubfcribe their names, and, whether they could write or not, to affix the fign of the crofs: which cuftom our illiterate vulgar do, for the moft part, to this day keep up; by figning a crofs for their mark, when unable to write their names. And indeed this inability to write, and therefore making a crofs in it's ftead, is honeftly avowed by Caedwalla, a Saxon king, at the end of one of his charters ^d. In like manner, and for the fame unfurmountable reafon, the Normans, a brave but
.{F S}
z 1 Kings. C. 21. Daniel. C. 6. Efther. c. 8.
a “ And I bought the field of Hanameel, and weighed him the money, even feventeen fhekels of filver. And I fubfcribed the evidence, and fealed it, and took witneffes, and weighed him the money in the ballances. And I took the evidence of the purchafe, both that which was fealed according to the law and cuftom, and alfo that which was open.” c. 32.
b Inft. 2. 10. 2 &3.
c I Inft. 7.
d “ Propria manu pro ignorantia literarun, fignum fanctae cruis expreffi et fubferipfi.” Seld. Tan Angl. l. I. §. 42. Ann this (according to Procopius) the emperor Juftin in the eaft, and Theodoric king of the Goths in Italy, had before authorized by their example, on account of their inability to write.
.{F E}
VOL II
Pp
Illiterate
.p 306
The Rights of Things.
Book ii.
Ch. 20.

illiterate nation, at their firft fettlement in France, ufed the practice of fealing only, without writing their names : which cuftom continued, whdn learning made it's way among them, though the reafon for doing it had ceafed; and hence the charter of Edward the confeffor to Weftminfter abbey, himfelf being brought up in Normandy, was witneffed only by his feal, and is generally thought to be the oldeft fealed charter of any authenticity in England ^e. At the conqueft, the Norman lords brought over into this kingdom their own fafhions; and introduced waxen feals only, inftead of the Englifh method of writing their names, and figning with the fign of the crofs ^f. The impreffions of thefe feals were fometimes a knight on horfeback, fometimes other devifes : but coats of arms were not introduced into feals, not indeed into any other ufe, till about the reign of Richard the firft, who brought them from the croifade in the holy land; where they were firft invented and painted on the fhields of the knights, to diftinguifh the variety of perfons of every chriftian nation who reforted thither, and who could not, when clad in complete fteel, be otherwife known or afcertained.

THIS neglect of figning, and refting only upon the authenticity of feals, remained very long among us; for it was held in all our books that fealing alone was fufficient to aughenticate a deed : and fo the common form of attefting deeds, --- “fealed and delivered,”continues to this day; notwithftanding the ftatute 29 Car. II. c. 3. before-mentioned revives the Saxon cuftom, and expreffly directs the figning, in all grants of lands, and many other fpecies of deeds; in which therefore figning feems to be now as neceffary as fealing, though it hath been fometimes held, that the one includes the other ^g

A SEVENTH requifite to a good deed is that it be delivered, by the party himfelf or his certain attorney : which therefore is
.{F S}
e Lamb. Arcbeiou. 51.
f “Normanni cbirograpborum confectionem, cum crutibus aureis, aliifque fignaculis facris, in Angli firmari folitam, in cacram impreffam mutant, modumque foribendi Anglicum rejiciunt.” Ingulph.
g 3 Lev. I. Stra. 764.
.{F E}
alfo
.p 307
The Rights of Things.
Book ii.
Ch. 20.

alfo expreffed in the atteftation; “ fealed and delivered.” A deed takes effect only from this tradition or delivery; for, if the date be falfe or impoffible, the delivery afcertains the time of it. And if another perfon feals the deed, yet if the party delivers it himfelf, he thereby adopts the fealing ^h, and by a parity of reafon the figning alfo, and makes them both his own. A delivery may be either abfolute, that is, to the party or grantee himfelf; or to a third perfon, to hold till fome conditions be performed on the part of the grantee: in which laft cafe it is not delivered as a deed, but as an efcrow; that is, as a fcrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purpofes ⁱ.

THE laft requifite to the validity of a deed is the atteftation, or execution of it in the prefence of witneffes : though this is neceffary, rather for preferving the evidence, than for conftituting the effence, of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia taftata mentioned by the feodal writers ^k; which were written memorandums, introduced to perpetuate the tenor of the conveyance and inveftiture, when grants by parol only became the foundation of frequent difpute and uncertainty. To this end they regiftered in the deed the perfons who attended as witneffes, which was formerly done without their figning their names (that not being always in their power) but they only heard the deed read; and then the clerk or fcribe added their names, in a fort of memorandum; thus; “ hijs feftibus, Fohanne Moore, Facobo Smith, et aliis ad banc rem convocatis ^l.”This, like all other folemn tranfactions, was originally done only coram paribus ^m, and frequently when affembled in the court baron, hundred, or county court; which was then expreffed in the atteftation, tefte comitatu, bunfredo, &c ⁿ. Afterwards the atteftation of other witneffes was allowed, the trial in
.{F S}
h Perk. §. 130.
i Co. Litt. 36.
k Feud. l. I. t. 4.
l Co. Litt. 7.
m Feud. l. 2. t. 32.
n Spelm. Gloff. 228. Madox. Formul. n^o. 221. 322. 660.
.{F E}
P p 2
cafe


.p 308
The Rights of Things.
Book ii.
Ch. 20.

cafe of a difpute being ftill referved to the pares; with whom the witneffes (if more than one) were affociated, and joined in the verdict ^o: till that alfo was abrogated by the ftatute of York, 12 Edw. II. ft. I. c. 2. And in this manner, with fome fuch claufe of bijs teftibus, are all old deeds and charters, particularly magna carta, wirneffed. And, in the time of fir Edward coke, creations of nobility were ftill witneffed in the fame manner ^p. But in the king's common charters writs, or letters patent, the ftile is now altered : for, at prefent, the king is his own witnefs, and attefts his letters patent thus; “ tefte meipfo, witnefs ourfelf at Weftminfter, &c :” a form which was introduced by Richard the firft ^q, but not commonly ufed till about the beginning of the fifteenth century; nor the claufe of bijs teftibus intirely difcontinued till the reign of Henry the eighth ^r: which was alfo the aera of difcontinuing it in the deeds of fubjects, learning being then revived, and the faculty of writing more general : and therefore ever fince that time the witneffes have fubfcribed their atteftation, either at the bottom, or on the back, of the deed ^s .

III. WE are next to confider, how a deed may be avaided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the effential requifites before-mentioned; either, 1. Proper parties, and a proper fubject matter: 2. A good and fufficient confideration: 3. Writing, on paper or parchment, duly ftamped : 4. Sufficient and legal words, properly difpofed : 5. Reading, if defired, before the execution : 6. Sealing; and, by the ftatute, in many cafes figning alfo: or, 7. Delivery : it is a void deed ab initio. It may alfo be avoided by matter ex poft facto : as, I. By rafure, interlining, or other alteration in any material part; unlefs a memorandum be made thereof at the time of the execution and atteftation ^t. 2. By breaking off, or defacing, the feal ^u. 3. By
.{ F S}
o Co. Litt. 6.
p 2 Inft. 77.
q Madox, formul. n^o . 515.
r Ibid. Differt. fol. 32.
s 2 Inft. 78.
t II Rep. 27.
u 5 Rep. 23.
.{F E}
delivering
.p 309
The Rights of Things.
Book ii.
Ch. 20.

delivering it up to be cancelled; that is to have lines drawn over it, in the form of lattice work of cancelli; though the phrafe is now ufed figuratively for any manner of obliteration or defacing it. 4. By the difagreement of fuch, whofe concurrence is neceffary, in order for the deed to ftand: as, the hufband, where a feme covert is concerned; an infant, or perfon under durefs, when thofe difabilities are removed; and the like. 6. By the judgment or decree of a court of judicature. This was antiently the province of the court of ftar chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practioce; or is proved to be an abfolute forgery ^w. In any of thefe cafes the deed may be voided, either in part or totally, according as the caufe of avoidance is more or lefs extenfive.

AND, having thus explained the general nature of deeds, we are next to confider their feveral fpecies, together with their refpective incidents. And herein I fhall only examine the particulars of thofe, which, from long practice and experience of their efficacy, are generally ufed in the alienation of real eftates: for it would be tedious, nay of in perfonal concerns, but which fall under our general definition of a deed; that is, a writing fealed and delivered. The former, being principally fuch as ferve to convey the property of lands and tenements from man to man, are commonly denominated conveyances : which are either conveyances at common law, or fuch as receive their force and efficacy by virtue of the ftatute of ufes.

I.OF conveyances by the common law, fome may be called original, or primary conveyances; which are thofe by means whereof the benefit or eftate is created or firft arifes: others are derivative or eftate, originally created, is enlarged, reftrained, transferred, or extinguifhed.
.{ F S}
w Toth. 90.
.{F E}
Original
.p 310
The Rights of Things.
Book ii.
Ch. 20.

Original conveyances are the following; 1. Feoffment: 2. Gift ; 3. Grant; 4. Leafe; 5. Exchange; 6. Partition: derivative are, 7. Releafe; 8. Confirmation; 9. Surrender ; 10. Affignment ; 11. Defeazance.

1.A FEOFFMENT, feoffamentum, is a fubftantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi ^x . It is the moft antient method of conveyance, the moft folemn and public, and therefore the moft eafily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that fo gives, or enfeoffs, is called the feoffor; and the perfon enfeoffed is denominated the feoffee.

THIS is plainly derived from, or is indeed itfelf the very mode of the antient feodal donation; for though it may be performed by the word “ enfeoff” or “grant,” yet the apteft word of feoffment is “ do or dedi ^y.” And it is ftill directed and governed by the fame feodal rules; infomuch that the principal rule relating to the extent and effect of a feodal grant, “ tenor eft qui legem dat feudo,” is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationi ^z .” And therefore as in pure feodal donations the lord, from whom the feud moved, muft expreffly limit and declare the continuance or quantity of eftate he meant to confer, “ ne quis plus donaffe praefumatur, quam in donatione exprefferit ^a;” fo, if one grants by feoffment lands or tenements to another, and limits or expreffes no eftate, the grantee ( due ceremonies of law being performed) hath barely an eftate for life ^b. For, as the perfonal abilities of the feoffee were originally prefumed to be the immediate or principal inducements to the feoffment, the feoffee's eftate ought to be confined to his perfon, and fubfift only for his
.{ F S}
x Co. Litt. 9.
y Ibid.
z Wright. 21.
a pag. 108.
b Co. Litt. 42.
.{F E}
life;
.p 311
The Rights of Things.
Book ii.
Ch. 20.

life; unlefs the feoffor, by exprefs provifion in the creation and conftitution of the eftate, hath given it a longer continuance. Thefe exprefs provifions are indeed generally made, for this was for ages the only conveyance, whereby our anceftors were wont to create an eftate in fee-fimple ^c, by giving the land to the feoffee, to hold to him and his heirs for ever; though it ferves equally well to convey any other eftate of freehold ^d.

BUT by the mere words of the deed the feoffment is by no means perfected. There remains a very material ceremony to be performed, called livery of feifin; without which the feoffee has but a mere eftate at will ^e. This livery of feifin is no other than the pure feodal inveftiture, or delivery of corporal poffeffion of the land or tenement; which was held abfolutely neceffary to complete the donation. “ Nam feudum fine inveftitura nullo modo conftitui potuit ^f :” and an eftate was then only perfect, when, as Fleta expreffes it in our law, “fit juris et feifinae conjunctio ^g.”

INVESTITURES, in their original rife, were probably intended to demonftrate in conquered countries the actual poffeffion of the lord; and that he did not grant a bare litigious right, which the foldier was ill qualified to profecute, but a peaceable and firm poffeffion. And, at a time when writing was feldom practifed, a mere oral gift, at a diftance from the fpot that was given, was not likely to be either long or accurately retained in the memory of by-ftanders, who were very little interefted in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and teftify the transfer of the eftate; and that fuch as claimed tltle by other means might know againft whom to bring their actions.

IN all well-governed nations, fome notoriety of this kind has been ever held requifite, in order to acquire and afcertain the
.{F S}
c See Appendix. N ^o. I.
d Co. Litt. 9.
e Litt. §. 66.
f Wright. 37.
g l. 3. c. 15.§. 5.
.{F E}
property
.P 312
The RIGHTS of THINGS
BOOK II
Ch. 20.

property of lands. In the Roman law plenum dominium was not faid to fubfift, unlefs where a man hath both the right, and the corporal poffeffion; which poffeffion could not be acquired with out both an actual intention to poffefs, and an actual feifin, or entry into the premifes, or part of them in the name of the whole ^h. And even in ecclefiaftical promotions, where the freehold paffes to the perfon promoted, corporal poffeffion is required at this day, to veft the property completely in the new proprietor; who, according to the diftinction of the canonifts ⁱ, acquires the jus ad rem, or inchoate and imperfect right, by nomination and inftitution; but not the jus in re, or complete and full right, unlefs by corporal poffeffion. Therefore in dignities poffeffion is given by inftallment ; in rectories and vicarages by induction, without which no temporal rights accrue to the minifter, though every ecclefiaftical power is vefted in him by inftitution. So alfo even in defcents of lands, by our law, which are caft on the heir by act of the law itfelf, the heir has not plenum dominium, or full and complete ownerfhip, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir fhall not be intitled to take the poffeffion, but the heir of the perfon who was laft actually feifed ^k. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; fo ad to tranfmit the inheritance to his own heirs: non jus, fed feifina, facit ftipitem ^l .

YET, the corporal tradition of lands being fometimes inconvenient, a fymbolical delivery of poffeffion was in many cafes antiently allowed; by transferring fomething mear at hand, in the prefence of credible witneffes, which by agreement fhould ferve to reprefent the very thing defigned to be conveyed; and an oc-

.{F S}
h Nam apifcimur poffeffioncm corpore et animo: neque per fe animo. Non autem ita accipiendum eft, ut qui fundum poffidere velit, omnes glebas circumambulet; fed fufficit quamlibet partem ejus fundi introire. {Ff. 41. 2. 3.) And again: traditionibus dominia rerum, non nudis pactis, transferuntur, (Cod. 2. 3. 20.)
i Decretal. I. 3. t. 4. c. 40.
k See pag. 209. 227, 228.
l Flet. I. 6. c. 2. §. 2.
.{F E}
cupancy
.P 313
The Rights of Things.
Book ii.
Ch. 20.

cupancy of this fign or fymbol was permitted as equivalent to occupancy of the land itfelf. Among the Jews we find the evidence of a purchafe thus defined in the book of Ruth ^m : “ now this was the manner in former time in Ifrael, concerning redeeming and concering changing, for to confirm all things : a man plucked off his fhoe, and gave it to his neighbour; and this was a teftimony in Ifrael.” Among the antient Goths and Swedes, contracts for the fale of lands were made in the prefence of witneffes, who extended the cloak of the buyer, while the feller caft a clod of the land into it, in order to give poffeffion : and a ftaff or wand was alfo delivered from the vendor to the vendee, which paffed through the hands of the witneffes ⁿ. With our Saxon anceftors the delivery of a turf was a neceffary folemnity, to eftablifh the conveyance of lands ^o. And, to this day, the conveyance of our copyhold eftates is ufually made from the feller to the lord or his fteward by delivery of a rod or virge, and then from the lord to the purchafor by re-delivery of the fame, in the prefence of a jury of a jury of tenants.

CONVEYANCES in writing were the laft and moft refined improvement. The mere delivery of poffeffion, either actual or fymbolical, depending on the ocular teftimony and remembrance of the witneffes, was liable to be forgotten or mifreprefented, and became frequently incapable of proof. Befides, the new occafions and neceffities, introduced by the advancement of commerce, required means to be devifed of charging and incumbering eftates, and of making them liable to a multitude of conditions and minute defignations for the purpofes of raifing money, without an abfolute fale of the land; and fometimes the like proceedings were found ufeful in order to make a decent and competent provifion for the numerous branches of a family, and for other domeftic views. None of which could be effected by a mere, fimple, corporal transfer of the foil from one man to another, which was principally calculated for conveying an abfolute
.{ F S}
m ch. 4. v. 7.
n Stiernhook. de jure Suton. I. 2. c. 4.
o Hickes. Differt. epiftolar. 8.
.{F E}
VOL II.
Q q
Unli
.P 314
The Rights of Things.
Book ii.
Ch. 20.

unlimited dominion. Written deeds were therefore introduced, in order to fpecify and perpetuate the peculiar purpofes of the party who conveyed: yet ftill, for a very long feries of years, they were never made ufe of, but in company with the more antient and notorious method of transfer, by delivery of corporal poffeffion.

LIVERYof feifin, by the common law, is neceffary to be made upon every grant of an eftate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impoffible to be made; for they are not the object of the fenfes: and in leafes for years, or other chattel interefts, it is not neceffary. In leafes for years indeed an actual entry is neceffary; to veft the eftate in the leffee: for the bare leafe gives him only a right to enter, which is called his intereft in the term, or intereffe termini; and, when he enters in purfuance of that right, he is then and not before in poffeffion of his term, and complete tenant for years ^p. This entry by the tenant himfelf ferves the purpofe of notoriety, as well as livery of feifin from the grantor could have done; which it would have been improper to have given in this cafe, becaufe that folemnity is appropriated to the conveyance of a freehold. And this is one reafon why freeholds cannot be made to commence in futuro, becaufe they cannot be made but by livery of feifin; which livery, being an actual manual tradition of the land, muft take effect in praefenti, or not at all ^q.

ON the creation of a freebold remainder, at one and the fame time with a particular eftate for years, we have before feen that at the common law livery muft be made to the particular tenant ^r. But if fuch a remainder be created afterwards, expectant on a leafe for years now in being, the livery muft not be made to the leffee for years, for then it operates nothing; “nam quod femel meum eft, amplius meum effe non poteft ^s:” but it muft be made
.{F S}
p Co. Litt. 46.
q See pag. 165.
r pag. 167.
s Co. Litt. 49.
.{F E}
to
.P 315
The Rights of Things.
Book ii.
Ch. 20.

to the remainder-man himfelf, by confent of the leffee for years: for without his confent no livery of the poffeffion can be given ^t; partly becaufe fuch forcible livery would be an ejectment of the tenant from his term, and partly for the reafons before given ^u for introducing the doctrine of attornments.

LIVERY of feifin is either in deed, or in law. Livery in deed is thus performed. The feoffor, leffor, or his attorney, together with the feoffee, leffee, or hid attorney, (for this may as effectually be done by deputy or attorney, as by the principals themfelves in perfon ) come to the land, or to the houfe; and there, in the prefence of witneffes, declare the contents of the feoffment or leafe, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other perfons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect. “ I deliver thefe to you in the name of feifin of all the lands and tenements contained in this deed.” But, if it be of a houfe, the feoffor muft take the ring, or latch of the door, the houfe being quite empty, and deliver it to the feoffee in the fame form; and then the feoffee muft enter alone, and fhut to the door, and then open it, and let in the others ^w. If the conveyance or feoffment be of divers lands, lying fcattered in one and the fame county, then in the feoffor's poffeffion, livery of feifin of any parcel, in the name of the reft, fufficeth for all ^x ; but, if they be in feveral counties, there muft be as many liveries as there are counties. For, if the title to thefe lands comes to be difputed, there muft be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Befides, antiently this feifin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attefted fuch delivery in the body or on the back of the deed; according to the rule of the feodal law ^y, pares debent intereffe inveftiturae feudi, et non alii : for which
.{F S}
t Co. Litt. 48.
u pag. 288.
w Co. Litt. 48. Weft. Symb. 251.
x Litt. §. 414.
y Feud. l. 2. t. 58.
.{ F E}
Q q 2
this
.P 316
The Rights of Things.
Book ii.
Ch. 20.

this reafon is expreffly given; becaufe the peers or vafals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which ftrangers might be apt to connive at. And though, afterwards, the ocular atteftation of the pares was held unneceffary, and livery might be made before any credible witneffes, yet the trial, in cafe it was difputed, (like that of all other atteftations ^z) was ftill referved to the pares or jury of the county ^a. Alfo, if the lands be out on leafe, though all lie in the fame county, there muft be as many liveries as there are tenants : becaufe no livery can be made in this cafe, but by the confent of the particular tenant; and the confent of one will not bind the reft ^b. And in all thefe cafes it is prudent, and ufual, to endorfe the livery of feifin on the back of the deed, fpecifving the manner, place, and time of making it; together with the names of the witneffes ^c. And thus much for livery in deed.

LIVERY in law is where the fame is not made on the land, but in fight of it only; the feoffor faying to the feoffee, “I give you yonder land, enter and take poffeffion.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwife; unlefs he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as poffible to the lands ^d , will fuffice without an entry ^e. This livery in law cannot however be given or received by attorney, but only by the parties themfelves ^f .

2. THE conveyance by gift, donatio, is properly applied to the creation of an eftate-tail, as feoffment is to that of an eftate in fee, and leafe to that of an eftate for life or years. It differs in nothing from a feoffment, but in the nature of the eftate paffing by it : for the operative words of conveyance in this cafe are do or dedi ^g; and gifts in tail are equally imperfect without livery
.{F S}
z See pag. 307.
a Gilb. Ten. 35.
b Dyer. 18.
c See appendix. N ^o. I.
d Litt. §. 421, &c.
e Co. Litt. 48.
f Ibid. 52.
g Weft's symbol. 206.
.{ F E}
of
.P 317
The Rights of Things.
Book ii.
Ch. 20.

of feifin, as feoffments in fee-fimple ^h. And this is the only diftinction that Littleton feems to take, when he fays ⁱ, “it is to be underftood that there is feoffor and feoffee, donor and donce, leffor and leffee;” viz. feoffor is applied to a feoffment in feefimple, donor to a gift in tail, and leffor to a leafe for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next fpecies of deeds: which are,

3. GRANTS, conceffiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or, fuch things whereof no livery can be had ^k. For which reafon all corporeal hereditaments, as lands and houfes, are faid to lie in livery; and the others, as advowfons, commons, rents, reverfions, &c, to lie in grant ^l. And the reafon is given by Bracton ^m: “traditio, or livery, nibil aliud eft quam rei corporalis de perfona in perfonam, de manu in manum, tranflatio aut in poffeffionem inductio; fed res incorporales, quae funt ipfum jus rei vel corpori inhaerens, traditionem non patiuntur.” Thefe therefore pafs merely by the delivery of the deed. And in figniories, or reverfions of lands, fuch grant, together with the attornment of the tenant (while attornments were requifite ) were held to be of equal notoriety with, and therefore wquivalent to, a feoffment and livery of lands in immediate poffeffion. It therefore differs but little from a feoffment, except in it's fubjuct matter: for the operative words therein commonly ufed are dedi et conceffi, “have given and granted.”

4. ALEASE is properly a conveyance of any lands or tenements, (ufually in confideration of rent or other annual recompenfe) made for life, for years, or at will, but always for a lefs time than the leffor hath in the premifes: for if it be for the whole intereft, it is more properly an affignment than a leafe. The ufual words of operation in it are, “demife, grant,
.{F S}
h Litt. §. 59.
i §. 57.
k Co. Litt. 9.
l Ibid. 172.
m l. 2. c. 18.
.{F E}
“and
.P 318
The Rights of Things.
Book ii.
Ch. 20.

“ and to farm let; dimifi, conceffi, et ad firmam tradidi.” Farm, or feorme, is an old Saxon word fignifying provifions ⁿ: and it came to be ufed inftead of rent or, render, becaufe antiently the greater part of rents were referved in provifions; in corn, in poultry, and the like; till the ufe of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at prefent, by a gradual departure from the original fenfe, the word farm is brought to fignify the very eftate or lands fo held upon farm or rent. By this conveyance an eftate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments: though livery of feifin is indeed incident and neceffary to one fpecies of leafes, viz. leafes for life of corporeal hereditaments; but to no other.

WHATEVER reftrictions, by the feverity of the feodal law, might in times of very high antiquity be obferved with regard to leafes; yet by the common law, as it has ftood for many centuries, all perfons deifed of any eftate might let leafes to endure fo long as their own intereft lafted, but no longer. Therefore tenant in fee-fimple might let leafes of any duration; for he hath the whole intereft: but tenant in tail, or reverfioner; nor could a hufband, feifed jure uxoris, make a firm or valid leafe for any longer term than the joint lives of himfelf and his wife, for then his intereft expired. Yet fome tenants for life, where the fee-fimple was in abeyance, might ( with the concurrence of fuch as have the guardianfhip ofthe fee) make leafes of equal duration with thofe granted by tenants in fee-fimple: fuch as parfons and vicars with confent of the patron and ordinary ^o. So alfo bifhops, and deans, and fuch other fole ecclefiaftical corporations as are feifed of the fee-fimple of lands in their corporate right, might, with the concurrence and confirmation of fuch perfons as the law requires, have made leafes for years, or for life, eftates in tail, or in fee, without any limitation or controll.
.{F S}
n Spelm. Gl. 229.
o Co. Litt. 44.
{F E}
And
.P 319
The Rights of Things.
Book ii.
Ch. 20.

And corporations aggregate might have made what eftates they pleafed, without the confirmation of any other perfon whatfoever. Whereas now, by feveral ftatutes, this power where it was unreafonable, and might be made an ill ufe of, is reftrained; and, where in the other cafes the reftraint by the common law feemed too hard, it is in fome meafure removed. The former ftatutes are called the reftraining, the latter the enabling ftatute. We will take a view of them all, in order of time.

AND, firft, the enabling ftatute, 32 Hen. VIII. c. 28. empowers three manner of perfons to make leafes, to endure for three lives or one and twenty years, which could not do fo before. As, firft, tenant in tail, may by fuch leafes bind his iffue in tail, but not thofe in remainder or reverfion. Secondly, a hufband feifed in right of his wife, in fee-fimple or fee-tail, provided the wife joins in fuch leafe, may bind her and her heirs thereby. Laftly, all perfons feifed of an eftate of fee-fimple in right of their churches, except parfons and vicars, may (without the concurrence of any other perfon) bind their fucceffors. But then there muft many requifites be obferved, which the ftatute fpecifies, otherwife fuch leafes are not binding ^p. 1. The leafe muft be by indenture; and not by deed poll, or by parol. 2. It muft begin from the making, or day of the making, and not at any greater diftance of time. 3. If there be any old leafe in being, it muft be firft abfolutely furrendered, or be within a year of expiring. 4. It muft be either for twenty one years, or three lives; and not for both. 5. It muft not exceed the term of three lives, or twenty one years, but may be for a fhorter term. 6. It muft be of corporeal hereditaments, and not of fuch things as lie merely in grant; for no rent can be referved thereout by the common law, as the leffor cannot refort to them to diftrein ^q. 7. It muft be of
.{F S}
p Co. Litt. 44.
q But now by the ftatute 5 Geo. III. c. 17. a leafe of tithes or other incorporeal hereditaments, alone, may be granted by any bifhop or ecclefiaftical or elcemofynary corporation, and the fucceffor fhall be intitled to recover the rent by an action of debt, which (in cafe of a freehold leafe) he could not have brought at the common law.
.{F E}
lands
.P 320
The Rights of Things.
Book ii.
Ch. 20.

lands and tenements moft commonly letten for twenty years paft; fo that if they have been let for above half the time (or eleven years out of the twenty ) either for life, for years, at will, or by copy of court roll, it is fufficient. 8. The noft ufual and cuftomary feorm or rent, for twenty years, paft, muft be referved yearly on fuch leafe. 9. Such leafes muft not be made without impeachment of wafte. Thefe are the guards, impofed by the ftatute (which was avowedly made for the fecurity of farmers and the confequent improvement of tillage) to prevent unreafonable abufes, in prejudice of the iffue, the wife, or the fucceffor, of the reafonable indulgence here given.

NEXT follows, in order of time, the difabling or reftraining ftatute, 1 Eliz. c. 19. (made entirely for the benefit of the fucceffor ) which enacts, that all grants by archbifhops and bifhops (which include even thofe confirmed by the dean and chapter; the which, however long or unreafonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without referving the ufual rent, fhall be void. Concurrent leafes, if confirmed by the dean and chapter, are held to be within the exception of this ftatute, and therefore valid; provided they do not exceed (together with the leafe in being) the term permitted by the act ^r. But, by a faving expreffly made, this ftatute of I Eliz. did not extend to grants made by any bifhop to the crown; by which means queen Elizabeth procured many fair poffeffions to be made over to her by the prelates, either for her own ufe, or with intent to be granted out again to her favourites, whom fhe thus gratified without any expenfe to herfelf. To prevent which ^s for the future, the ftatute I Jac. I. c. 3. extends the prohibition to grants and leafes made to the king, as well as to any of his fubjects.

NEXT comes the ftatute 13 Eliz. c. 10. explained and enforced by the ftatutes 14 Eliz. c. 11 & 14. 18 Eliz. c. II. and 43 Eliz. c. 29. which extend the reftrictions, laid by the laft
.{F S}
r Co. Litt. 45.
s II Rep. 71.
.{F E}
mentioned
.P 321
The Rights of Things.
Book ii.
Ch. 20.

mentioned ftatute on bifhops, to certain other inferior corporations, both fole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclefiaftical, or elcemofynary corporations, and all parfons and vicars, are reftrained from making any leafes of their lands, unlefs under the following regulations: 1. They muft not exceed twenty one years, or more, muft be yearly referved thereon. 2. The accuftomed rent, or more, muft be yearly referved thereon. 3. Houfes in corporations, or market towns, may be let for forty years; provided they be not the manfion-houfes of the leffors, nor have above ten acres of ground belonging to them; and provided the leffee be bound to keep them in repair: and they may alfo be aliened in fee-fimple for lands of equal value in recompenfe. 4. Where there is an old leafe in being, no concurrent leafe fhall be made, unlefs where the old one will expire within three years. 5. No leafe (by the equity of the ftatute ) fhall be made without impeachment of wafte ^t. 6. All bonds and covenants tending to fruftrate the provifions of the ftatutes 13 & 18 Eliz. fhall be void.

CONCERNING thefe reftrictive ftatutes there are two obfervations to be made. Firft, that they do not, by any conftruction, enable any perfons to make fuch leafes as they were by common law difabled to make. Therefore a parfon, or vicar, though he is reftrained from making longer leafes than for twenty one years or three lives, even with the confent of patron and ordinary, yet is not enabled to make any leafe at all, fo as to bind his fucceffor, without obtaining fuch confent ^u. Secondly, that though leafes contrary to thefe acts are declared void, yet they are good againft the leffor during his life, if he be a fole corporation; and are alfo good againft an aggregate corporation fo long as the head of it lives, who is prefumed to be the moft concerned in intereft. For the act was intended for the benefit of the fucceffor only; and no man fhall make an advantage of his own wrong^w.
.{F S}
t Co. Litt. 45.
u Ibid. 44.
w Ibid. 45.
.{F E}
VOL II.
R r
THERE
.P 322
The Rights of Things.
Book ii.
Ch. 20.

THERE is yet another reftriction with regard to college leafes, by ftatute 18 Eliz. c. 6. which directs, that one third of the old rent, then paid, fhould for wheat for each 6 s 8 d , or a quarter of malt for every 5 ^s ; or that the leffees fhould pay for the fame according to the price that wheat and malt fhould be fold for, in the market next adjoining to the refpective colleges, on the market-day before the rent becomes due. This is faid ^x to have been an invention of lord treafurer Burleigh, and fir Thomas Smith, then principal fecretary of ftate; who, obferving how greatly the value of money had funk, and the price of all provifions rifen, by the quantity of bullion imported from the newfound Indies, (which effects were likely to increafe to a greater degree) devifed this method for upholding the revenues of colleges. Their fore-fight and penetration has in this refpect been very apparent: for, though the rent fo referved in corn was at firft but one third of the old rent, or half of what was ftill referved in money, yet now the proportion is nearly inverted; and the money arifing from corn rents is, communibus annis, almoft double to the rents referved in money.

THE leafes of beneficed clergymen are farther reftrained, in cafe of their non-refidence, by ftatutes 13 Eliz. c. 20. 14 Eliz. c. II. and 18 Eliz. c. II. which direct, that, if any beneficed clergyman be abfent from his cure above fourfcore days in any one year, he fhall not only forfeit ine year's profit of his benefice, to be diftributed among the poor of the parifh; but that all leafes made by him, of the profits of fuch benefice, and all covenants and agreements of like nature, fhall ceafe and be void: except in the cafe of licenfed pluralifts, who are allowed to demife the living, on which they are non-refident, to their curates only; provided fuch curates do not abfent themfelves above forty days in any one year. And thus much for leafes, with their feveral enlargements and reftrictions ^y.
.{F S}
x Strype's annals of Eliz.
y For the other learning relating to leafes, which is very curious and diffufive, I muft refer the ftudent to 3 Bac. Abridge. 295. (title, leafes)
.{F E}
.P 323
The Rights of Things.
Book ii.
Ch. 20.

5. AN exchange is a mutual grant of equal interefts, the one in confideration of the other. The word “exchange” is fo individually requifite and appropriated by law to this cafe, that it cannot be fupplied by any other word or expreffed by any circumlocution ^z. The eftates exchanged muft be equal in quantity ^a; not of value, for that is immaterial, but if intereft; as fee-fimple for fee-fimple, a leafe for twenty years for a leafe for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery ^b. But no livery of feifin, even in exchanges of freehold, is neceffary to perfect the conveyance ^c: for each party ftands in the place of the other and occupies his right, and each of them hath already had corporal poffeffion of his own land. But entry muft be made on both fides; for, if either party die before entry, the exchange is void, for want of fufficient notoriety ^d. And fo alfo, if two parfons, by confent of patron and ordinary, exchange their preferments; and the one is prefented, inftituted, and inducted, and the other is prefented, and inftituted, but dies before induction; the former fhall not keep his new benefice, becaufe the exchange was not completed, and therefore he fhall return back to his own. For if, after an exchange of lands or other hereditaments, either party be evicted of thofe which were taken by him in exchange, through defect of the other's title; he fhall return back to the poffeffion of his own, by virtue of the implied warranty contained in all exchanges ^f.

6. APARTITION, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands fo held among them in feveralty, each taking a diftinct part. Here, as in fome inftances there is a unity of intereft, and in all a unity
.{F S}
leafes and terms for years) where the fubject is treated in a perfpicuous and mafterly manner; being fuppofed to be extracted from a manufcript of fir Geoffrey Gilbert.
z Co. Litt. 50, 51.
a Litt. §. 64, 65.
b Co. Litt. 51.
c Litt. §. 62.
d Co. Litt. 50.
e Perk. §. 288.
f Pag. 301.
.{ F E}
R r 2
of
.P 324
The Rights of Things.
Book ii.
Ch. 20.

of poffeffion, it is neceffary that they all mutually convey and affure to each other the feveral eftates, which they are to take and enjoy feparately. By the common law coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common muft have done it by deed: and in both cafes the conveyance muft have been perfected by livery of feifin ^g . And the ftatutes of 31 Hen. VIII. c. I. and 32 Hen. VIII. c. 32. made no alteration in this point. But the ftatute of frauds 29 Car. II. c. 3. hath now abolifhed this diftinotion, and made a deed in all cafes neceffary.

THESE are the feveral fpecies of primary, or original conveyances. Thofe which remain are of the fecondary, or derivative fort; which prefuppofe fome other conveyance precedent, and only ferve to enlarge, confirm, alter, reftrain, reftore, or transfer the intereft granted by fuch original conveyance. As,

7. RELEASES; which are a difcharge or conveyance of a man's right in lands or tenements, to another that hath fome former eftate in poffeffion. The words generally ufed therein are “remifed, releafed, and for ever quit-claimed ^h.” And thefe releafes mayenure either, 1. By way of enlarging an eftate, or enlarger l' eftate: as, if there be tenant for life or years, remainder to another in fee, and he in remainder releafes all his right to the particular tenant and his heirs, this gives him the eftate in fee ⁱ. But in this cafe the releffee muft be in poffeffion of fome eftate, for the releafe to work upon; for if there be leffee for years, and, before he enters and is in poffeffion, the leffor releafes to him all his right in the reverfion, fuch releafe is void for want of poffeffion in the releffee^k. 2. By way of paffing an eftate, or mitter l' eftate: as when one of two coparceners releafeth all her right to the other, this paffeth the fee-fimple of the whole ^l. And in both thefe cafes there muft be a privity of eftate between the releffor and releffee ^m; that is one of their eftates muft be
.{F S}
g Litt. §. 250. Co. litt. 169.
h Litt. §. 445.
k Ibid. §. 459.
i Co. Litt. 273.
m Ibid. 272, 273.
.{F E}
fo
.P 325
The Rights of Things.
Book ii.
Ch. 20.

fo related to the other, as to make but one and the fame eftate in law. 3. By way of paffing a right, or mitter le droit: as if a man be diffeifed, and releafeth to his diffeifor all his right; hereby the diffeifor acquires a new right, which changes the quality of his eftate, and renders that lawful which before was tortious ⁿ. 4. By way of extinguifhment : as if my tenant for life makes a leafe to A for life, remainder to B and his heirs, and I releafe to A; this extinguifhes may right to the reverfion, and fhall enure to the advantage of B's remainder as well as of A's particular eftate^o. 5. By way of entry and feoffment: as if there be two joint diffeifors, and the diffeifee releafes to one of them, he fhall be fole feifed, and fhall keep out his former companion; which is the fame in effect as if the diffeifee had entered, and thereby put an end to the diffeifin, and afterwards had enfeoffed one of the diffeifors in fee ^p. And hereupon we may obferve, that when a man has in himfelf the poffeffion of lands, he muft at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future intereft, he may convey that right or intereft by a mere releafe to him that is in poffeffion of the land : for the occupancy of the releffee is a matter of fufficient notoriety already.

8. A CONFIRMATION is of a nature nearly allied to a releafe. Sir Edward coke defines it ^q to be a conveyance of an eftate or right in effe, whereby a voidable eftate is made fure and unavoidable, or whereby a particular eftate is encreafed: and the words of making it are thefe, “have given, granted, ratified, approved, and confirmed ^r.” An inftance of the firft branch of the definition is if tenant for life leafeth for forty years, and dieth during that term; her the leafe for years is voidable by him in reverfion: yet, if he hath confirmed the eftate of the leffee for years, before the death of tenant for life, it is no longer voidable but fure ^s. The latter branch, or that which tends
.{F S}
n Litt. §. 466.
o Ibid. §. 470.
p Co. Litt. 278.
q I Inft. 295.
r Litt. §. 515. 531.
s Ibid. §. 516
.{F E}
to
.P 326
The Rights of Things.
Book ii.
Ch. 20.

to the encreafe of a particular eftate, is the fame in all refpects with that fpecies of releafe, which operates by way of enlargement.

9. A SURRENDER, fur fumeredditio, or rendering up, is of a nature directly oppofite to a releafe; for, as that operates by the greater eftate's defcending upon the lefs, a furrender is the falling of a lefs eftate into a greater by deed. It is defined ^t, a yielding up of an eftate for life or years to him that hath the immediate reverfion or remainder, wherein the particular eftate may merge or drown, by mutual agreement between them. It is done by thefe words, “hath furrendered, granted, and yielded up.” The furrenderor muft be in poffeffion ^u ; and the furrenderee muft have a higher eftate, in which the eftate furrendered may merge : therefore tenant for life cannot furrender to him in remainder for years ^w. In a furrender there is no occafion for livery of feifin ^x; for there is a privity of eftate between the furrenderor, and the furrenderee; the one's particular eftate, and the other's remainder are one and the fame eftate; and livery having been once made at the creation of it, there is no neceffity for having it afterwards. And, for the fame reafon, no livery is required on a releafe or confirmation in fee to tenant for years or at will, though a freehold thereby paffes; fince the reverfion of the releffor, or confirmor, and the particular eftate of the releffee, or confirmee, are one and the fame eftate; and where there is already a poffeffion, derived from fuch a privity of eftate, any farther delivery of poffeffion would be vain and nugatory ^y.

10. AN affignment is properly a transfer, or making over to another, of the right one has in any eftate; but it is ufually applied to an eftate for life or years. And it differs from a leafe only in this: that by a leafe one grants an intereft lefs than his own, referving to himfelf a reverfion; in affignments he parts with the whole
.{F S}
t Co. Litt. 337.
u Ibid. 338.
w Perk. §. 589.
x Co. Litt. 50.
y Litt. §. 460.
.{F E}
property,
.P 327
The Rights of Things.
Book ii.
Ch. 20.

Property, and the affignee ftands to all intents and purpofes in the place of the affignor.

11. A DEFEAZANCE is a collateral deed, made at the fame time with a feoffment or other conveyance, containing certain conditions, upon the proformance of which the eftate then created may be defeated ^z or totally undone. And in this manner mortgages were in former times ufually made; the mortgagor enfeoffing the mortgagee, and he at the fame time executing a deed of defeazance, whereby the feoffment was rendered void on re-payment of the money borrowed at a certain day. And this, when executed at the fame time with the original feoffment, was confidered as part of it by the antient law ^a ; and, therefore only, indulged: no fubfequent fecret revocation of a folemn conveyance, executed by livery of feifin, being allowed in thofe days of fimplicity and truth; though. When ufes were afterwars introduced, a revocation of fuch ufes was permitted by the courts of equity. But things that were merely executory, or to be completed by matter fubfequent, (as rents, of which no feifin could be had till the time of payment; and fo alfo annuities, conditions, warranties, and the like) were always liable to be recalled by defeazances made fubfequent to the time of their creation ^b.

II. THERE yet remain to be fpoken of fome few conveyances, which have their force and operation by virtue of the ftatute of ufes.

USES and trufts are in their original of a nature very fimilar, or rather exactly the fame: anfwering more to the fidei-commiffum than the ufus-fructus, of the civil law; which latter was the temporary right of ufing a thing, without having the ultimate property, or full dominion of the fubftance ^c . But the fidei-commiffum, which ufually was created by will, was the difpofal of an inheritance to one, in confidence that he fhould convey it or dif-
.{F S}
z From the French verb defaire, infectum reddere.
a Co. litt. 236.
b Ibid. 237.
c Ff. 7. 1. 1.
.{F E}
pofe
.P 328
The Rights of Things.
Book ii.
Ch. 20.

pofe of the profits at the will of another. And it was the bufinefs of a particular magiftrate, the praetor fidei-commiffarius, inftituted by Auguftus, to enforce the obfervance of this confidence ^d. So that the right thereby given was looked upon as a vefted right, and entitled to a remedy from a court of juftice : which occafioned that known divifion of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary courfe of law; jus fiduciarium, a right in truft, for which in courtefy, for which the remedy was only by imtreaty or requeft ^e. In our law, a ufe might be ranked under the rights of the fecond kind; being a confidence repofed in another who was tenant of the land, or terre-tenant, that he fhould difpofe of the land according to the intentions of ceftuy que, or him to whofe ufe it was granter, and fuffer him to take the profits ^f. As, if a feoffment was made to A and his heirs, to the ufe of (or in truft for) B and his heirs; here at the common law A the terre-tenant had the legal property and poffeffion of the land, but B the ceftuy que ufe was in confcience and equity to have the profits and difpofal of it.

THIS notion was tranfplanted into England from the civil law, about the clofe of the reign of Edward III ^g, by means of the foreign ecclefiaftics; who introduced it to evade the ftatutes of mortmain, by obtaining grants of lands, not to their religious houfes directly, but to the ufe of the religious houfes ^h: which the clerical chancellors of thofe times held to be fidei-commiffa, and binding in confcience; and therefore affumed the jurifdiction, which Auguftus had vefted in his practor, of compelling the execution of fuch trufts in the court of chancery. And, as it was moft eafy to obtain fuch grants from dying perfons, a maxim was eftablifhed, that though by law the lands themfelves were not devifable, yet if a teftator had enfeoffed another to his own ufe, and fo was poffeffed of the ufe only, fuch, ufe was devifable by
.{F S}
d Inft. 2. tit. 23.
e Ff. 43. 26. 1. Bacon on ufes. 8 ^o. 306.
f Plowd. 352.
g Stat. 50 Edw. III. c. 6. I Ric. II. c. 9.
h See pag. 271.
.{F E}
will
.P 329
The Rights of Things.
Book ii.
Ch. 20.

will. But we have feen ⁱ how this evafion was crufhed in it's infancy, by ftatute 15 Ric. II. c. 5. with refpect to religious houfes.

YET, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and fometimes very laudably, applied to number of civil purpofes: particularly as it removed the reftraint of alienations by will, and permitted the owner of lands in his lifetime to make various defignations of their profits, as prudence, or juftice, or family convenience, might from time to time require. Till at length, during our long wars in France and the fubfequent civil commotions between the houfes of York and Lancafter, ufes grew almoft univerfal: through the defire that men had (when their lives were continually in hazard) of providing for their children by will, and of fecuring their eftates from forfeitures; when each of the contending parties, as they became uppermoft, alternately attainted the other. Wherefore about the reign of Edward IV, (before whofe time, lord Bacon remarks ^k, there are not fix cafes to be found relating to the doctrine of ufes) the courts of equity began to reduce them to fomething of a regular fyftem.

ORIGINALLY it was held that the chancery could give no relief, but againft the very perfon himfelf intrufted for ceftuy que ufe, and not againft his heir or alience. This was altered in the reign of Henry VI, with refpect to the heir ^l; and afterwards the fame rule, by a parity of reafon, was extended to fuch alienees as had purchafed either without a valuable confideration, or with an exprefs notice of the ufe ^m. But a purchafor for a valuable confideration, without notice, might hold the land difcharged of any truft or confidence. And alfo it was held, that neither the king or queen, on account of their dignity royal ⁿ, nor any corporation aggregate, on account of it's limited capacity ^o, could be feifed to any ufe but their own; that is, they
.{F S}
i pag. 272.
k on ufes. 313.
l keilw. 42. Yearbook 22 Edw. IV. 6.
m Keilw. 46. Bacon of ufes. 312.
n Bro. Abr. tit. Feoffin. al ufes. 31. Bacon of ufes. 346, 347.
o Bro. Abr. tit. Feoffin. al ufes. 40. Bacon. 347.
.{F E}
VOL II.
S f
might

.P 330
The Rights of Things.
Book ii.
Ch. 20.

might hold the lands, but were not compellable to execute the truft. And, if the feoffee to ufes died without heir, or committed a forfeiture, or married, neither the lord who entered for his efcheat or forfeiture, nor the hufband who retained the poffeffion as tenant by the curtefy, nor the wife who was affigned her dower, were liable to perform the ufe ^p; becaufe they were not parties to the truft, but came in by act of law: thouth doubtlefs their title in reafon was no better than that of the heir.

ON the other hand the ufe itfelf, or intereft of ceftuy que ufe, was learnedly refined upon with many elaborate diftinctions. And, 1. It was held that nothing could be granted to a ufe, whereof the ufe is infeparable from the poffeffion; as annuities, ways, commons, and authorities, quae ipfo ufu confumuntur ^q: or whereof the feifin could not be inftantly given ^r. 2. A ufe could not be raifed without a fufficient confideration. For where a man makes a feoffment to another without any confideration, equity prefumes that he meant it to the ufe of himfelf ^s : unlefs he expreffly declares it to be to the ufe of another, and then nothing fhall be prefumed contrary to his own expreffions ^t. But, if either a good or a valuable confideration appears, equity will immediately raife a ufe correfpondent to fuch confideration ^u. 3. Ufes were defcendible according to the rules of the common law, in the cafe of inheritances in poffeffion ^w; for in this and many other refpects aequitas fequitur legem, and cannot eftablifh a different rule of property from that which the law has eftablifhed. 4. ufes might be affigned by fecret deeds between the parties ^x, or be devifed by laft will and teftament ^y: for, as the legal eftate in the foil was not transferred by thefe tranfactions, no livery of feifin was neceffary; and, as the intention of the parties was the leading principle in this fpecies of property, any inftrument declaring that intention was allowed to be binding in
.{F S}
p 1 Rep. 122.
q 1 Jon. 127.
r Cro. Eliz. 401.
s See pag 296.
t 1 And. 37.
u Moor. 684.
w 2 Roll. Abr. 780.
x Bacon of ufes. 312.
y Ibid. 308.
.{F E}
equity.
.P 331
The Rights of Things.
Book ii.
Ch. 20.

equity. But ceftuy que ufe could not at common law aliene the legal intereft of the lands, without the concurrence of his feoffee ^z; to whom he was accounted by law to be only tenant at fufferance ^a. 5. Ufes were not liable to any of the feodal burthens; and particularly did not efcheat for felony or other defect of blood; for efcheats, ac, are the confequence of tenure, and ufes are held of nobody: but the land itfelf was liable to efcheat, whenever the blood of the feoffee to ufes was extinguifhed by crime or by defect; and the lord ( as was before obferved ) might hold it difcharged of the ufe ^b. 6. No wife could be endowed, or hufband have his curtefy, of a ufe ^c : for no truft was declared for their benefit, at the original grant of the eftate. And therefore it became cuftomary, when moft eftates were put in ufe, to fettle before marriage fome joint eftate to the ufe of the hufband and wife for their lives; which was the original of modern jointures ^d. 7. A ufe could not be extended by writ of elegit, or other legal procefs, for the debts of ceftuy que ufe ^e. For, being merely a creature of equity, the common law, which looked no farther than to the perfon actually feifed of the land, could award no procefs againft it.

IT is impracticable, upon our prefent plan, to purfue the doctrine of ufes through all the refinements and miceties, which the ingenuity of the times (abounding in fubtile difquifitions ) deduced from this child of the imagination; when once a departure was permitted from the plain fimple rules of property eftablifhed by the antient law. Thefe principal outline will be fully fufficient to fhew the ground of lord Bacon's complaint ^f, that this courfe of proceeding “was turned to deceive many of their juft and reafonable rights. A man, that had caufe to fue for land, knew not againft whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the hufband of
.{F S}
z Stat. 1 Ric. III. c. 1.
a Bro. Abr. ibid. 23.
b Jenk. 190.
c 4 Rep. 1. 2 And. 75.
d See pag. 137.
e Bro. Abr. tit. executions. 90.
f Ufe of the law. 153
.{F E}
S f 2
“his
.P 332
The Rights of Things.
Book ii.
Ch. 20.

“ his curtefy; the lord of his wardfhip, relief, heriot, and efcheat; the creditor of his extent for debt; and the poor tenant of his leafe.” To remedy thefe inconveniences abundance of ftatutes were provided, which made the lands liable to be extended by the creditors of ceftuy que ufe ^g ; allowed actions for the freehold to be brought againft him, if in the actual pernancy or enjoyment of the profits ^h; made him liable to actions of wafte ⁱ ; eftablifhed his conveyances and leafes made without the concurrence of his feoffees ^k ; and gave the lord the wardfhip of his heir, with certain other feodal perquifites ^l .

THESE provifions all tended to confider ceftuy que ufe as the real owner of the eftate; and at length that idea was carried into full effect by the ftatute 27 Hen. VIII. c. 10. which is ufually called the ftatute of ufes, or, in conveyances and pleadings, the ftatute for transferring ufes into poffeffion. The hint feems to have been derived from what was done at the acceffion of king Richard III; who having, when duke of Glocefter, been frequently made a feoffee to ufes, would upon the affumption of the crown (as the law was then underftood ) have been intitled to hold the lands difcharged of the ufe. But, to obviate fo notorious an injuftice, an act of parliament was immediately paffed ^m, which ordained that, where he had been fo infeoffed jointly with other perfons, the land fhould veft in the other feoffees, as if he had never been named; and that, where he ftood folely infeoffed, the eftate itfelf fhould veft in ceftuy que ufe in like manner as he had the ufe. And fo the ftatute of Henry VIII, after reciting the various inconveniences before-mentioned and many others, enacts, that “ when any perfon fhall be feifed of lands, ac, to the ufe, confidence, or truft, of any other perfon or body politick, the perfon or corporation intitled to the ufe in fee-fimple, fee-tail, for life,
.{F S}
g Stat. 50 Edw III. c. 6. 2 Ric. II. feff. 2. c. 3. 19 Hen V I c. 15.
h Stat 1 Ric. II. c. 9. 4 Hen. IV. C. 7. II. Hen VI. C. 3. 1 Hen. VII. C. 1.
i Stat. II Hen. VI. C. 5.
k Stat. I Ric. III. c. 1.
l Stat. 4 Hen. VII. C. 17. 19 Hen. VII. C. 15.
m 1 Ric. III. c. 5.
.{F E}
“or
.P 333
The RIGHTS of THINGS
BOOK II.
Ch. 20.

“ or years, or otherwife, fhall from thenceforth ftand and be feifed or poffeffed of the land, ac, of and in the like eftates as they have in the ufe, truft, or confidence; and that the eftate of the perfon fo feifed to ufes fhall be deemed to be in him or them that have the ufe, in fuch quality, manner, form, and condition, as they had before in the ufe.” The ftatute thus executes the ufe, as our lawyers term it; that is, it conveys the poffeffion to the ufe, and transfers the ufe into poffeffion : thereby making ceftuy que ufe complete owner of the lands and tenements, as well at law as in equity.

THE ftatute having thus, not abolifhed the conveyance to ufes, but only annihilated the intervening eftate of the feoffee, and turned the intereft of ceftuy que ufe into a legal inftead of an equitable ownerfhip; the courts of common law began to take cognizance of ufes, inftead of fending the party to feek his relief in chancery. And, confidering them now as merely a mode of conveyance, very many of the rules before eftablifhed in equity were adopted with improvements by the judges of the common law. The fame perfons only were held capable of being feifed to a ufe, the fame confiderations were neceffary for raifing it, and it could only be raifed of the fame hereditaments, as formerly. But as the ftatute, the inftant it was reifed, converted it into an actual poffeffion of the land, a great number of the incidents, that formerly attended it in it's fiduciary ftate, were now at an end. The land could not efcheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchafor difcharged of the ufe, nor be liable to dower or curtefy on account of the feifin of fuch feoffee; becaufe the legal eftate never refts in him for a moment, but is inftantaneoufly transferred to ceftuy que ufe, as foon as the ufe is declared. And, as the ufe and the land were now convertible terms, they became liable to dower, curtefy, and efcheat, in confequence of the feifin of ceftuy que ufe, who was now become the terre-tenant alfo; and they like wife were no longer devifable by will.

THE
.P 334
The Rights of Things.
Book ii.
Ch. 20.

THE various neceffities of mankind imduced alfo the judges very foon to depart from the rigour and fimplicity of the rules of the common law, and to allow a more minute and complex conftruction upon conveyances to ufes than upon others. Hence it was adjudged, that the ufe need not always be executed the inftant the conveyance is made: but, if it cannot take effect at that time, the operation of the ftatute may wait till the ufe fhall arife upon fome future contingency, to happen within a reafonable period of time; and in the mean while the antient ufe fhall remain in the original grantor: as, when lands are conveyed to the ufe of A and B, after a marriage fhall be had between them ⁿ, or to the ufe of A and his heirs till B fhall pay him a fum of money, and then to the ufe of B and his heirs ^o . Which doctrine, when devifes by will were again introduced, and confidered as equivalent in point of conftruction to declarations of ufes, was alfo adopted in favour of executory devifes ^p. But herein thefe, which are called contingent or fpringing, ufes differ form an executory devife; in that there muft be a perfon feifed to fuch ufes at the time when the contingency happens, elfe they can never be executed by the ftatute; and therefore, if the eftate of the feoffee to fuch ufe be deftroyed by alienation or otherwife, before the contingency arifes, the ufe is deftroyed for ever ^q: whereas by an executory devife the freehold itfelf is transferred to the future devifee. And, in both thefe cafes, a fee may be limited to take effect after a fee ^r ; becaufe, though that was forbidden by the common law in favour of the lord's efcheat, yet. When the legal eftate was not extended beyond one fee-fimple, fuch fubfequent ufes (after a ufe in fee) were before the ftatute executed the legal eftate in the fame manner as the ufe before fubfifted. It was alfo held that a ufe, though executed, may change from one to another by circumftances ex poft facto ^s ; as,if A makes a feoffment
.{F S}
n 2 Roll. Abr. 791. Cro. Eliz. 439.
o Bro. Abr. tit. Feoffm. al ufes. 30.
p See pag. 173.
q 1 Rep. 134. 138. Cro. Eliz. 439.
r Pollex f. 78. 10 Mod. 423.
s Bro. Abr. tit. Feoffm. al ufes. 30.
.{F E}
to
.P 335
The Rights of Things.
Book ii.
Ch. 20.


to the ufe of his intended wife and her eldeft fon for their lives, upon the marriage the wife takes the whole ufe in feveralty; and, upon the birth of a fon, the ufe is executed jointly in them both ^t. This is fometimes called a fecondary, fometimes a fbifting, ufe. And, whenever the ufe limited by the deed expires, or cannot veft, it returns back to him who raifed it, after fuch expiration or during fuch impoffibility, and is ftiled a refulting ufe. As, if a man makes a feoffment to the ufe of his intended wife for life, with remainder to the ufe of her firft-born fon in tail: here, till he marries the ufe refults back to himfelf; after marriage, it is executed in the wife for life; and, if the dies without iffue, the whole refults back to him in fee ^u. It was likewife held, that the ufes originally declared may be revoked at any future time, and new ufes be declared of the land, provided the grantor referved to himfelf fuch a power at the creation of the eftate; whereas the utmoft that the common law would allow, was a deed of defeazance coeval with the grant itfelf (and therefore efteemed a part of it) upon events fpecifically mentioned ^w. And, in cafe of fuch a revocation, the old ufes were held inftantly to ceafe, and the new ones to become executed in their ftead ^x. And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon obferves ^y) have always affected to have the difpofition of their property revocable in their own time, and irrevocable ever afterwards.

BY this equitable train of decifions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminifhed. But one or two technical foruples, which the judges found it hard to get over, reftored it with tenfold increafe. They held in the firft place, that “ no ufe could be limited on a ufe ^z ;” and that when a man bargains and fells his land for money, which raifes a ufe by implication to the bargainee, the limitation of a farther ufe to another perfon is re-
.{ F S}
t Bacon of ufes. 351.
u Ibid. 350. 1 Rep. 120.
w See pag. 327.
x Co. Litt. 237.
y on ufes. 316.
z Dyer. 155.
.{F E}
pugnant

.P 336
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
pugnant and therefore void ^a. And therefore, on a feoffment to A and his heirs, to the ufe of B and his heirs, in truft for C and his heirs, they held that the ftatute executed only the firft ufe, and that the fecond was a mere nullity: not adverting, that the inftant the firft ufe was executed in B, he became feifed to the ufe of C, which fecond ufe the ftatute might as well be permitted to execute as it did the firft; and fo the legal eftate might be inftantaneoufly tranfmitted down, through a hundred ufes upon ufes, till finally executed in the laft ceftury que ufe. Again; as the ftatute mentions only fuch perfons as were feifed to the ufe of others, this was held not to extend to terms of years, or other chattel interefts, whereof the tremor is not feifed, but only poffeffed ^b; and therefore, if a term of one thoufand years be limited to A, to the ufe of (or in truft for) B, the ftatute does not execute this ufe, but leaves it as at common law ^c. And laftly, (by more modern refolutions) where lands are given to one and his heirs, in truft to receive and pay over the profits to another, this ufe is not executed by the ftatute: for the land muft remain in the truftee to enable him to perform the truft ^d.

OF the two more antient diftinctions the courts of equity quickly availed themfelves. In the firft cafe it was evident, that B was never intended by the parties to have any beneficial intereft; and, in the fecond, the ceftury que ufe of the term was expreffly driven into the court of chancery to feek his remedy: and therefore that court determined, that though thefe were not ufes, which the ftatute could execute, yet ftill they were trufts in equity, which in confcience ought to be performed. To this the reafon of mankind affented, and the doctrine of ufes was revived, under the denomination of trufts: and thus, by this ftrict conftruction of the courts of law, a ftatute made upon great deliberation, and introduced in the moft folemn manner, has had little other effect than to make a flight alteration in the formal words of a conveyance ^e.

.{FS}
^a 1 And. 37. 136.
^b Bacon law of ufes. 335. Jenk. 244.
^c Poph 76. Dyer. 369.
^d 1 Equ. Caf. abr. 383, 384.
^e Vaugh. 50. Atk. 591.
.{FE}
HOWEVER,
.P 337
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
HOWEVER, the courts of equity, in the exercife of this new jurifdiction, have wifely avoided in a great degree thofe mifchiefs which made ufes intolerable. They now confider a truft-eftate(either when expreffly declared or refulting by neceffary implication) as equivalent to the legal ownerfhip, governed by the fame rules of property, and liable to every charge in equity, which the other is fubject to in law: and, by a long feries of uniform determinations, for now near a century paft, with fome affiftance from the legiflature, they have raifed a new fyftem of rational jurifprudence, by which trufts are made to anfwer in general all the beneficial ends of ufes, without their inconvenience or frauds. The treafon is confidered as merely the inftrument of conveyance, and can in no fhape affect the eftate, unlefs by alienation for a valuable confideration to a purchafor without notice ^f; which, as ceftuy que ufe is generally in poffeffion of the land, is a thing that can rarely happen. The truft will defcend, may be aliened, is liable to debts, to forfeiture, to leafes and other incumbrances, nay even to the curtefy of the hufband, as if it was an eftate at law. It has not yet indeed been fubjected to dower, more from a cautious adherence to fome hafty precedents ^g, than from any well-grounded principle. It hath alfo been held not liable to efcheat to the lord, in confequence of attainder or want of heirs ^h: becaufe the truft could never be intended for his benefit. But let us now return to the ftatute of ufes.

THE only fervice, as was before obferved, to which this ftatute is now configned, is in giving efficacy to certain new and fecret fpecies of conveyances; introduced in order to render tranfactions of this fort as private as poffible, and to fave the trouble of making livery of feifin, the only antient conveyance of corporeal freeholds: the fecurity and notoriety of which public inveftiture abundantly overpaid the labour of going to the land, or of fending an attorney in one's ftead. But this now has given way to

.{FS}
^f 2 Freem. 43.
^g 1 Chanc. Rep. 254. 2 P. W^ms. 640.
^h Hardr. 494. Burgefs & Wheate. Hil. 32 Geo. II. in Cano.
.{FE}

VOL. II.

T t

12. A TWELFTH

.P 338
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
12. A TWELFTH fpecies of conveyance, called a covenant to ftand feifed to ufes: by which a man, feifed of lands, covenants in confideration of blood or marriage that he will ftand feifed of the fame to the ufe of his child, wife, or kinfman; for life, in tail, or in fee. Here the ftatute executes at once the eftate; for the party intended to be benefited, having thus acquired the ufe, is thereby put at once into corporal poffeffion of the land ^I, without ever feeing it, by a king of parliamentary magic. But this conveyance can only operate, when made upon fuch weighty and interefting confiderations as thofe of blood or marriage.

13. A THIRTEENTH fpecies of conveyance, introduced by this ftatute, is that of a bargain and fale of lands; which is a kind of a real contract, whereby the bargainor for fome pecuniary confideration bargains and fells, that is, contracts to convey, the land to the bargainee; and becomes by fuch bargain a truftee for, or feifed to the ufe of, the bargainee; and then the ftatute of ufes completes the purchafe ^j: or, as it hath been well expreffed ^k, the bargain firft vefts the ufe, and then the ftatute vefts the poffeffion. But as it was forefeen that conveyances, thus made, would want all thofe benefits of notoriety, which the old common law affurances were calculated to give; to prevent therefore clandeftine conveyances of freeholds, it was enacted in the fame feffion of parliament by ftatute 27 Hen. VIII. c. 16. that fuch bargains and fales fhould not enure to pafs a freehold, unlefs the fame be made by indenture, and enrolled within fix months in one of the courts of Weftminfter-hall or with the cuftos rotulorum of the county. Clandeftine bargains and fales of chattel interefts, or leafes for years, were thought not worth regarding, as fuch interefts were very precatious till about fix years before ^l; which alfo occafioned them to be overlooked in framing the ftatute of ufes: and therefore fuch bargains and fales are not directed to be enrolled. But how impoffible is it to forefee, and

.{FS}
^I Bacon. Ufe the law. 151. Ibid. 150.
^k Cro. Jac. 696.
^l See pag. 142.
.{FE}
provide
.P 339
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
provide againft, all the confequence of innovations ! This omiffion has given rife to

14. A FOURTEENTH fpecies of conveyance, viz. by leafe and releafe; firft invented by ferjeant Moore, foon after the ftatute of ufes, and now the moft common of any, and therefore not to be fhaken; though very great lawyers (as, particularly, Mr. Noy) have formerly doubted it's validity ^m. It is thus contrived. A leafe, or rather bargain and fale, upon fome pecuniary confideration, for one year, is made by the tenant of the freehold to the leffee or bargainee. Now this, without any enrollment, makes the bargainor ftand feifed to the ufe of the bargainee, and veft in the bargainee the ufe of the term for a year; and then the ftatute immediately annexes the poffeffion. He therefore, being thus in poffeffion, is capable of receiving a releafe of the freehold and reverfion; which, we have feen before ⁿ, muft be made to a tenant in poffeffion: and accordingly, the next day, a releafe is granted to him ^o. This is held to fupply the place of livery of feifin; and fo a conveyance by leafe and releafe is faid to amount to a feoffment ^p.

15. TO thefe may be added deeds to lead or declare the ufes of other more direct conveyances, as feoffments, fines, and recoveries; of which we fhall fpeak in the next chapter: and,

16. DEEDS of revocation of ufes; hinted at in a former page ^q, and founded in a previous power, referved at the raifing of the ufes ^r, to revoke fuch as were then declared; and to appoint others in their ftead, which is incident to the power of revocation ^s. And this may fuffice for a fpecimen of conveyances founded upon the ftatute of ufes; and will finifh our obfervations upon fuch deeds as ferve to transfer real property.

.{FS}
^m 2 Mod. 25.
ⁿ pag. 324.
^o Co. Litt. 270. Cro. Jac. 604.
^q pag. 335.
^r See Appendix. NO. II. pag. xi.
^s Co. Litt. 237.
.{FE}
T t 2
BEFORE
.P 340
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
BEFORE we conclude, it will not be improper to fubjoin a few remarks upon fuch deeds as are ufed not to convey, but to charge or incumber, lands, and difcharge them again: of which nature are, obligations or bonds, recognizances, and defeasances upon them both.

1. AN obligation, or bond, is a dead ^t whereby the obligor obliges himfelf, his heirs, executors, and adminiftrators, to pay a certain fum of money to another at a day appointed. If this be all, the bond is called a fingle one, fimplex obligatio; but there is generally a condition added, that if the obligor does fome particular act, the obligation fhall be void, or elfe fhall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal fum of money borrowed of the obligee, with intereft, which principal fum is ufually one half of the penal fum fpecified in the bond. In cafe this condition is not performed, the bond becomes forfeited, or abfolute at law, and charges the obligor while living; and after his death the obligation defcends upon his heir, who (on defect of perfonal affets) is bound to difcharge it, provided he has real affets by defcent as a recompenfe. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the perfonal property of the obligor, will be more properly confidered hereafter.

IF the condition of a bond be impoffible at the time of making it, or be to do a thing contrary to fome rule of law that is merely pofitive, or be uncertain, or infenfible, the condition alone is void, and the bond fhall ftand fingle and unconditional: for it is the folly of the obligor to enter into fuch an obligation, from which he can never be releafed. If it be to do a thing that is malum in fe, the obligation itfelf is void: for the whole is an unlawful contract, and the obligee fhall take no advantage from fuch a tranfaction. And if the condition be poffible at the time

.{FS}
^t See Appendix. No. III. pag. xiii.
.{FE}
of
.P 341
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
of making it, and afterwards becomes impoffible by the act of God, the act of law, or the act of the obligee himfelf, there the penalty of the obligation is faved: foor no prudence or forefight of the obligor could guard againft fuch a contingency ^u. On the forfeiture of a bond, or it's becoming fingle, the whole penalty was recoverable at law: but here the courts of equity interpofed, and would not permit a man to take more than in confcience he ought; viz. his principal, intereft, and expenfes, in cafe the forfeiture accrued by non-payment of money borrowed; the damages fuftained, upon non-performance of covenants; and the like. And the ftatute 4 & 5 Ann. c. 16. hath alfo enacted, in the fame fpirit of equity, that in cafe of a bond, conditioned for the payment of money, the payment or tender of the principal fum due, with intereft, and cofts, even though the bond be forfeited and a fuit commenced thereon, fhall be a full fatisfaction and difcharge.

2. A recognizance is an obligation of record, which a man enters into before fome court of record or magiftrate duly authorized ^w, with condition to do fome particular act; as to appear at the affifes, to keep the peace, to pay a debt, or the like. It is in moft refpects like another bond: the difference being chiefly this; that the bond is the creation of a frefh debt or obligation de novo, the recognizance is an acknowlegement of a former debt upon record; the form whereof is, “that A. B. doth acknowlege to owe to our lord the king, to the plaintiff, to C. D. or “the like, the fum of ten pounds,” with condition to be void on performance of the thing ftipulated: in which cafe the king, the plaintiff, C. D. &c, is called the cognizee, “is cui cognofcitur;” as he that enters into the recognizance is called the cognizor, “is qui cognofcit.” This, being either certified to, or taken by the officer of fome court, is witneffed only by the record of that court, and not by the party's feal: fo that it is not in ftrict property a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment,

.{FS}
^u Co. Litt. 206.
^w Bro. Abr. tit. recognizance 24.
.{FE}
and
.P 342
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
and binding the lands of the cognizor, from the time of enrollment on record ^x. There are alfo other recognizances, of a private kind, in nature of a ftatute ftaple, by virtue of the ftatute 23 Hen. VIII. c. 6. which have been already explained ^y, and fhewn to bea charge upon real property.

3. A DEFEAZANCE, on a bond, recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the fame manner as a defeazance of an eftate before-mentioned. It differs only from the common condition of a bond, in that the one is always inferted in the deed or bond itfelf, the other is made between the fame parties by a feparate and frequently a fubfequent deed ^z. This, like the condition of a bond, when performed, difcharges and difincumbers the eftate of the obligor.

THESE are the principal fpecies of deeds or matter in pais, by which eftates may be either conveyed, or at leaft affected. Among which the conveyances to ufes are by much the moft frequent of any; though in thefe there is certainly one palpable defect, the want of fufficient notoriety: fo that purchafors or creditors cannot know with any abfolute certainty, what the eftate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance (by giving corporal feifin of the lands) this notoriety was in fome meafure anfwered; but all the advantages refulting from thence are now totally defeated by the introduction of death-bed devides and fecret conveyances: and there has never been yet aby fufficient guard provided againft fraudulent charges and incumbrances; fince the difufe of the old Saxon cuftom of tranfacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of fome adjacent monaftery ^a; and the failure of the general regifter eftablifhed by king Richard the firft, for mortgages made to Jews, in the capitula de Judaeis,

.{FS}
^x Stat. 29 Car. II. c. 3. §. 18.
^y See pag. 160.
^z Co. Litt. 237. 2 Saund. 47.
^a Hickes Differtat. epiftolar. 9.
.{FE}
of
.P 343
The RIGHTS of THINGS.
BOOK II.
Ch. 20.
of which Hoveden has preferved a copy. How far the eftablifhment of a like general regifter, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deferves to be well confidered. in Scotland every act and event, regarding the tranfmiffion of property, is regularly entered on record ^b. And fome of our own provincial divifions, particularly the extended county of York, and the populous county of Middlefex, have prevailed with the legiflature ^c to erect fuch regifters in their feveral diftricts. But, however plaufible thefe provifions may appear in theory, it hath been doubted by very competent judges, whether more difputes have not arifen in thofe counties by the inattention and omiffions of parties, than prevented by the ufe of regifters.

.{FS}
^b Dalrymple on feodal property. 262, &c.
^c. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6.
.{FE}

Blackstone Contents

Avalon Home

Document Collections

Ancient 4000bce - 399

Medieval 400 - 1399

15th Century 1400 - 1499

16th Century 1500 - 1599

17th Century 1600 - 1699

18th Century 1700 - 1799

19th Century 1800 - 1899

20th Century 1900 - 1999

21st Century 2000 -