Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Alienation by Deed
IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.
1. FIRST than, a deed is a writing sealed and delivered by the parties.1 It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, xat exochn [by way of pre-eminence], because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed.2 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 should be cut or indented (formerly in acute angles instar dentium [like teeth], but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists;3 and with us chirographa, or hand-writings;4 the word cirographum or cyrographum being usually that which was divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most 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 shaved quite even; and is therefore called a deed-poll, or a single deed.5
II. WE are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names.6 So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.
SECONDLY; the deed must be founded upon good and sufficient consideration. Not upon an usurious contract;7 nor upon fraud or collusion, either to deceive purchasers bona fide,8 or just and lawful creditors;9 any of which bad considerations will vacate the deed. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to inure, or to be effectual, only to the use of the grantor himself.10
The consideration may be either a good, or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded in motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant;11 and is therefore founded in motives of justice. Deeds, made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favor of creditors, and bona fide purchasers.
THIRDLY; the deed must be written, or I presume printed; for it may be in any character or any language; but it must be upon paper, or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.12 Wood or stone may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else 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 statute 29 Car. II. c. 3. enacts, that no lease or estate in lands, tenements, or hereditaments, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; unless put in writing, and signed by the party granting, or his agent lawfully authorized in writing.
FOURTHLY; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine.13 For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual14 order.
1.THE premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded: and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.15
2. 3. NEXT come the habendum [to have] and tenendum [to hold].16 The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum cannot lessen, but it may enlarge, the estate granted in the premises; as if a grant be “to A and the heirs of his body” in the premises, habendum “to him and his heirs for ever,” here A has an estate-tail, and a fee-simple expectant thereon.17 But had it been in the premises “to him and his heirs,” the habendum would be utterly void;18 for the larger and more beneficial estate is vested in him before the habendum comes, and shall not afterwards be narrowed, or divested, by it. The tenendum, “and to hold,” is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure, by which the estate granted was to be held; viz. “tenendum per servitium militare, in burgagio, in libero socagio,” [“to hold by military service, in burgage, in free socage”] etc. But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I. it was also sometimes used to denote the lord of whom the land should be held; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum has been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be held de capitalibus dominis feodi [of the chief lords of the fee]:19 but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use.
4. NEXT follow the terms or stipulations, if any, upon which the grant is made: the first of which is the reddendem or reservation, whereby the grantor does create or reserve some new thing to himself out of what he had before granted. As “rendering therefore yearly the sum of ten shillings, or a pepper corn, or two days plowing, or the like.”20 This render, reditus, return, or rent, under the pure feudal system consisted, in chivalry, principally of military services; in villenage, of the most slavish offices; and, in socage, it usually consists of money, though it may consist of services still, or of any other certain profit.21 To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed.22 But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee.23
5. ANOTHER of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated; as “provided always, that if the mortgagor shall pay the mortgagee 500£ upon such a day, the whole estate granted shall determine,” and the like.24
6. NEXT may follow the clause of warranty; whereby the grantor does, for himself and his heirs, warrant and secure to the grantee the estate so granted.25 By the feudal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch, or call, the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense.26 And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feudal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originall stipulated to be rendered.27 Or if a man and his ancestors had immemorially held land of another and his ancestors by the service of homage (which was called homage auncestral) this also bound the lord to warranty;28 the homage being an evidence of such a feudal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty,29 because they enjoy the equivalent. And, so even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title.30 But in a feoffment in fee by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs;31 because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, no warranty whatsoever is implied;32 they bearing no sort of analogy to the original feudal donation. And therefore in such cases it became necessary to add an express clause of warranty, to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant.33
THESE express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feudal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor’s grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him recompense in lands of equal value: the law, in favor of alienations, supposing that no ancestor would wantonly disinherit his next of blood;34 and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also 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 possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as where a father, or an elder son in the life of the father, released to the disseizor of either themselves or the grandfather, with warranty, this was lineal to the younger son.35 Collateral warranty was where the heir’s title to the land neither was, nor could have been, derived from the warranting ancestor; as where a younger brother released to his father’s disseizor, with warranty, this was collateral to the elder brother.36 But where the very conveyance, to which the warranty was annexed, immediately followed a disseizin, or operated itself as such (as, where a father tenant for years, with remainder to his son in fee-simple with warranty) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseizin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor.37
IN both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent form the warranting ancestor.38 But though, without assets, he was not bound to insure the title of another, yet, in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for, if he could succeed in such claim, he would then gain assets by descent (if he had them not before) and must fulfil the warranty of his ancestor: and the same rule39 was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon his son (who was the heir of both his parents) barred him from claiming his maternal inheritance: to remedy which the statute of Gloucester, 6 Edw. I. c. 3. declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. to make the same provision universal, by enacting that no collateral warranty should be a bar, unless where assets descended from the same ancestor,40 but it then proceeded not to effect. However, by the statute II Hen. VII. c. 20. notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16. all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession shall be void against his heir. By the wording of which last statute it should seem, that the legislature meant to allow, that the collateral warranty of tenant in tail, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar:41 which was therefore formerly mentioned42 as one of the ways whereby an estate tail might be destroyed; it being indeed nothing more in effect, than exchanging the lands entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue: and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon.43 And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.
7. AFTER warranty usually follow covenants, or conventions; which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he has 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 premises, etc.44 If the covenanter covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise: if he covenants also for his executors and administrators, his personal assets as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty, and it has therefore in modern practice totally superseded the other.
8. LASTLY, comes the conclusion, which mentions the execution and date of the deed, or the time of its being given or executed, either expressly, or by reference to some day and year before-mentioned.45 Not but a deed is good, although it mention no date; or has a false date; or even if it has an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.46
I PROCEED now to the fifth requisite for making a good deed; the reading of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.47
SIXTHLY, it is requisite that the party, whose deed it is, should seal, and in most cases I apprehend should sign it also. The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history.48 And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase.49 In the civil law also,50 seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use here. For though Sir Edward Coke51 relies on an instance of king Edwyn’s making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross: which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters.52 In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the confessor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England.53 At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross.54 The impressions of these seals were sometimes a knight on horseback, sometimes other devises: but coats of arms were not introduced into seals, not indeed into any other use, till about the reign of Richard the first, who brought them from the crusade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained.
THIS neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds, “sealed and delivered,” continues to this day; notwithstanding the statute 29 Car. II. c. 3. before-mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds; in which therefore signing seems to be now as necessary as sealing, though it has been sometimes held, that the one includes the other.55
A SEVENTH requisite to a good deed is that it be delivered, by the party himself or his certain attorney: which therefore is also expressed in the attestation; “sealed and delivered.” A deed takes effect only from this tradition or delivery; for, if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing,56 and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl 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 purposes.57
THE last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence, of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia tastata [short evidences] mentioned by the feudal writers;58 which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names (that not being always in their power) but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum; thus; “Hiis testibus Johanne Moore, Jacobo Smith, et aliis, ad hanc rem convocatis.“59 [“Witness John Moore, Jacob Smith and others, for this purpose assembled.”] This, like all other solemn transactions, was originally done only coram paribus [before the peers],60 and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation, teste comitatu, hundredo, &c. [witness the county, hundred, etc.]61 Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated, and joined in the verdict:62 till that also was abrogated by the statute of York, 12 Edw. II. St. I. c. 2. And in this manner, with some such clause of hiis testibus, are all old deeds and charters, particularly Magna Carta, witnessed. And, in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner.63 But in the king’s common charters writs, or letters patent, the style is now altered: for, at present, the king is his own witness, and attests his letters patent thus; “teste meipso, witness ourself at Westminster, etc:” a form which was introduced by Richard the first,64 but not commonly used till about the beginning of the fifteenth century; nor the clause of hiis testibus entirely discontinued till the reign of Henry the eighth:65 which was also the era of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general: and therefore ever since that time the witnesses have subscribed their attestation, either at the bottom, or on the back, of the deed.66
III. WE are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the essential requisites before-mentioned; either, 1. Proper parties, and a proper subject matter: 2. A good and sufficient consideration: 3. Writing, on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in many cases signing also: or, 7. Delivery: it is a void deed ab initio [from the beginning]. It may also be avoided by matter ex post facto [after the fact]: as, 1. By erasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation.67 2. By breaking off, or defacing, the seal.68 3. By delivering it up to be cancelled; that is to have lines drawn over it, in the form of lattice work of cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as, the husband, where a feme covert is concerned; an infant, or person under duress, when those disabilities are removed; and the like. 6. By the judgment or decree of a court of judicature. This was anciently the province of the court of star chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practice is proved to be an absolute forgery.69 In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less extensive.
AND, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those, which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances: which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.
I. Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or estate, originally created, is enlarged, restrained, transferred, or extinguished. Original conveyances are the following; 1. Feoffment: 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeasance.
1. A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi [the gift of a fee].70 It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.
THIS is plainly derived from, or is indeed itself the very mode of the ancient feudal donation; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment is “do or dedi.”71 And it is still directed and governed by the same feudal rules; insomuch that the principal rule relating to the extent and effect of a feudal grant, “tenor est qui legem dat feudo” [“the tenor of the deed gives validity to the fee”], is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationi” [“measure gives validity to the grant”].72 And therefore as in pure feudal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate he meant to confer, “ne quis plus donasse praesumatur quam in donatione expresserit” [“lest any one be presumed to have given more than is expressed in the donation”];73 so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) has barely an estate for life.74 For, as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee’s estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation and constitution of the estate, has given it a longer continuance. These express provisions are indeed generally made, for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple,75 by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate of freehold.76
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 seizin; without which the feoffee has but a mere estate at will.77 This livery of seizin is no other than the pure feudal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit” [“For a fee can in no wise be perfected without investiture”];78 and an estate was then only perfect, when, as Fleta expresses it in our law, “fit juris et seizinae conjunctio” [“a conjunction of law and seisin”].79
INVESTITURES, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And, at a time when writing was seldom practiced, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of bystanders, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such as claimed title by other means might know against whom to bring their actions.
IN all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Roman law plenum dominium [complete ownership] was not said to subsist, unless where a man has both the right, and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seizin, or entry into the premises, or part of them in the name of the whole.80 And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists,81 acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by installment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands, by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seized.82 It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so ad to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem [not right, but seizin makes the stock].83
YET, the corporal tradition of lands being sometimes inconvenient, a symbolic delivery of possession was in many cases anciently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth:84 “now this was the manner in former time in Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe, and gave it to his neighbor; and this was a testimony in Israel.” Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession: and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses.85 With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands.86 And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or virge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of a jury of tenants.
CONVEYANCES in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolic, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: yet still, for a very long series of years, they were never made use of, but in company with the more ancient and notorious method of transfer, by delivery of corporal possession.
LIVERY of seizin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses: and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary; to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini; and, when he enters in pursuance of that right, he is then and not before in possession of his term, and complete tenant for years.87 This entry by the tenant himself serves the purpose of notoriety, as well as livery of seizin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot be made but by livery of seizin; which livery, being an actual manual tradition of the land, must take effect in praesenti, or not at all.88
ON the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen that at the common law livery must be made to the particular tenant.89 But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam quod semel meum est, amplius meum esse non potest” [“for what is once mine, cannot be mine more fully”]:90 but it must be made to the remainder-man himself, by consent of the lessee for years: for without his consent no livery of the possession can be given;91 partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given92 for introducing the doctrine of attornments.
LIVERY of seizin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or hid attorney, (for this may as effectually be done by deputy or attorney, as by the principals themselves in person) come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, does deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect. “I deliver these to you in the name of seizin of all the lands and tenements contained in this deed.” But, if it be of a house, the feoffor must take the ring, or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others.93 If the conveyance or feoffment be of diverse lands, lying scattered in one and the same county, then in the feoffor’s possession, livery of seizin of any parcel, in the name of the rest, suffices for all;94 but, if they be in several counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be disputed, there must 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. Besides, anciently this seizin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighborhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feudal law,95 pares debent interesse investiturae feudi, et non alii [the peers, and no others, should be present at the investiture of the fee]: for which this reason is expressly given; because the peers or vassals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though, afterwards, the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations96) was still reserved to the pares or jury of the county.97 Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case, but by the consent of the particular tenant; and the consent of one will not bind the rest.98 And in all these cases it is prudent, and usual, to endorse the livery of seizin on the back of the deed, specifying the manner, place, and time of making it; together with the names of the witnesses.99 And thus much for livery in deed.
LIVERY in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, “I give you yonder land, enter and take possession.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless 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 possible to the lands,100 will suffice without an entry.101 This livery in law cannot however be given or received by attorney, but only by the parties themselves.102
2. THE conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the estate passing by it: for the operative words of conveyance in this case are do or dedi;103 and gifts in tail are equally imperfect without livery of seizin, as feoffments in fee-simple.104 And this is the only distinction that Littleton seems to take, when he says,105 “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;” viz. feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,
3. GRANTS, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or, such things whereof no livery can be had.106 For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, etc, to lie in grant.107 And the reason is given by Bracton:108 “traditio nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio; sed res incorporales, quae sunt ipsum jus rei vel corpori inhaerens, traditionem non patiuntur.” [“Livery is merely the transferring from one person to another, from one band to another, or the induction into possession of a corporeal hereditament; but an incorporeal hereditament, which is the right itself to a thing, or inherent in the person, does not admit of delivery.”] These therefore pass merely by the delivery of the deed. And in seigniories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite) were held to be of equal notoriety with, and therefore wquivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject matter: for the operative words therein commonly used are dedi et concessi, “have given and granted.”
4. A LEASE is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor has in the premises: for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “demise, grant, and to farm let; dimisi, concessi, et ad firmam tradidi.” Farm, or feorme, is an old Saxon word signifying provisions:109 and it came to be used instead of rent or, render, because anciently the greater part of rents were reserved in provisions; in corn, in poultry, and the like; till the use 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 present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments: though livery of seizin is indeed incident and necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other.
WHATEVER restrictions, by the severity of the feudal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seized of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he has the whole interest: but tenant in tail, or reversioner; nor could a husband, seized jure uxoris [in right of his wife], make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple: such as parsons and vicars with consent of the patron and ordinary.110 So also bishops, and deans, and such other sole ecclesiastical corporations as are seized of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggregate might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power where it was unreasonable, and might be made an ill use of, is restrained; and, where in the other cases the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.
AND, first, the enabling statute, 32 Hen. VIII. c. 28. empowers three manner of persons to make leases, to endure for three lives or one and twenty years, which could not do so before. As, first, tenant in tail, may by such leases bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seized in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seized of an estate of fee-simple in right of their churches, except parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding.111 1. The lease must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time. 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty one years, or three lives; and not for both. 5. It must not exceed the term of three lives, or twenty one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrain.112 7. It must be of lands and tenements most commonly letten for twenty years past; so 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 sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.
NEXT follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19. (made entirely for the benefit of the successor) which enacts, that all grants by archbishops and bishops (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act.113 But, by a saving expressly made, this statute of I Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favorites, whom she thus gratified without any expense to herself. To prevent which114 for the future, the statute I Jac. I. c. 3. extends the prohibition to grants and leases made to the king, as well as to any of his subjects.
NEXT comes the statute 13 Eliz. c. 10. explained and enforced by the statutes 14 Eliz. c. 11 & 14. 18 Eliz. c. II. and 43 Eliz. c. 29. which extend the restrictions, laid by the last mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical, or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty one years, or more, must be yearly reserved thereon. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market towns, may be let for forty years; provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair: and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste.115 6. All bonds and covenants tending to frustrate the provisions of the statutes 13 & 18 Eliz. shall be void.
CONCERNING these restrictive statutes there are two observations to be made. First, that they do not, by any construction, enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent.116 Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong.117
THERE is yet another restriction with regard to college leases, by statute 18 Eliz. c. 6. which directs, that one third of the old rent, then paid, should for wheat for each 6 s 8 d, or a quarter of malt for every 5 s; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market next adjoining to the respective colleges, on the market-day before the rent becomes due. This is said118 to have been an invention of lord treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the newfound Indies, (which effects were likely to increase to a greater degree) devised this method for upholding the revenues of colleges. Their fore-fight and penetration has in this respect been very apparent: for, though the rent so reserved in corn was at first but one third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted; and the money arising from corn rents is, communibus annis [on average], almost double to the rents reserved in money.
THE leases of beneficed clergymen are farther restrained, in case of their non-residence, by statutes 13 Eliz. c. 20. 14 Eliz. c. II. and 18 Eliz. c. II. which direct, that, if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year’s profit of his benefice, to be distributed among the poor of the parish; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void: except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above forty days in any one year. And thus much for leases, with their several enlargements and restrictions.119
5. AN exchange is a mutual grant of equal interests, the one in consideration of the other. The word “exchange” is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution.120 The estates exchanged must be equal in quantity;121 not of value, for that is immaterial, but if interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery.122 But no livery of seizin, even in exchanges of freehold, is necessary to perfect the conveyance:123 for each party stands in the place of the other and occupies his right, and each of them has already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety.124 And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own.125 For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other’s title; he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges.126
6. A PARTITION, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seizin.127 And the statutes of 31 Hen. VIII. c. I. and 32 Hen. VIII. c. 32. made no alteration in this point. But the statute of frauds 29 Car. II. c. 3. has now abolished this distinction, and made a deed in all cases necessary.
THESE are the several species of primary, or original conveyances. Those which remain are of the secondary, or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As,
7. RELEASES; which are a discharge or conveyance of a man’s right in lands or tenements, to another that has some former estate in possession. The words generally used therein are “remised, released, and for ever quit-claimed.”128 And these releases may inure either, 1. By way of enlarging an estate, or enlarger l’ estate: as, if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.129 But in this case the relessee must be in possession of some estate, for the release to work upon; for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee.130 2. By way of passing an estate, or mitter l’ estate: as when one of two coparceners releases all her right to the other, this passes the fee-simple of the whole.131 And in both these cases there must be a privity of estate between the relessor and relessee;132 that is one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, or mitter le droit: as if a man be disseized, and releases to his disseizor all his right; hereby the disseizor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious.133 4. By way of extinguishment: as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release to A; this extinguishes may right to the reversion, and shall inure to the advantage of B’s remainder as well as of A’s particular estate.134 5. By way of entry and feoffment: as if there be two joint disseizors, and the disseizee releases to one of them, he shall be sole seized, and shall keep out his former companion; which is the same in effect as if the disseizee had entered, and thereby put an end to the disseizin, and afterwards had enfeoffed one of the disseizors in fee.135 And hereupon we may observe, that when a man has in himself the possession of lands, he must 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 interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.
8. A CONFIRMATION is of a nature nearly allied to a release. Sir Edward Coke defines it136 to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these, “have given, granted, ratified, approved, and confirmed.”137 An instance of the first branch of the definition is if tenant for life leases for forty years, and dies during that term; her the lease for years is voidable by him in reversion: yet, if he has confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure.138 The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement.
9. A SURRENDER, sur sumeredditio, or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate’s descending upon the less, a surrender is the falling of a less estate into a greater by deed. It is defined,139 a yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words, “has surrendered, granted, and yielded up.” The surrenderor must be in possession;140 and the surrenderee must have a higher estate, in which the estate surrendered may merge: therefore tenant for life cannot surrender to him in remainder for years.141 In a surrender there is no occasion for livery of seizin;142 for there is a privity of estate between the surrenderor, and the surrenderee; the one’s particular estate, and the other’s remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes; since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory.143
10. AN assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.
11. A DEFEASANCE is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated144 or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on re-payment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law;145 and, therefore only, indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seizin, being allowed in those days of simplicity and truth; though. When uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seizin could be had till the time of payment; and so also annuities, conditions, warranties, and the like) were always liable to be recalled by defeasances made subsequent to the time of their creation.146
II. THERE yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses.
USES and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum [trust] than the usus-fructus [the usufruct], of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.147 But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the praetor fidei-commissarius [judge of trusts], instituted by Augustus, to enforce the observance of this confidence.148 So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which in courtesy, for which the remedy was only by entreaty or request.149 In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que, or him to whose use it was granted, and suffer him to take the profits.150 As, if a feoffment was made to A and his heirs, to the use of (or in trust for) B and his heirs; here at the common law A the terre-tenant had the legal property and possession of the land, but B the cestuy que use was in conscience and equity to have the profits and disposal of it.
THIS notion was transplanted into England from the civil law, about the close of the reign of Edward III,151 by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses:152 which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction, which Augustus had vested in his praetor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was possessed of the use only, such, use was devisable by will. But we have seen153 how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5. with respect to religious houses.
YET, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore about the reign of Edward IV, (before whose time, lord Bacon remarks,154 there are not six cases to be found relating to the doctrine of uses) the courts of equity began to reduce them to something of a regular system.
ORIGINALLY it was held that the chancery could give no relief, but against the very person himself entrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI, with respect to the heir;155 and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.156 But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king or queen, on account of their dignity royal,157 nor any corporation aggregate, on account of its limited capacity,158 could be seized to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife who was assigned her dower, were liable to perform the use;159 because they were not parties to the trust, but came in by act of law: though doubtless their title in reason was no better than that of the heir.
ON the other hand the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quae ipso usu consumuntur [consumed by the use itself]:160 or whereof the seizin could not be instantly given.161 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it to the use of himself:162 unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions.163 But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration.164 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;165 for in this and many other respects aequitas sequitur legem [equity follows law], and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties,166 or be devised by last will and testament:167 for, as the legal estate in the soil was not transferred by these transactions, no livery of seizin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee;168 to whom he was accounted by law to be only tenant at sufferance.169 5. Uses were not liable to any of the feudal burdens; and particularly did not escheat for felony or other defect of blood; for escheats, ac, are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use.170 6. No wife could be endowed, or husband have his curtesy, of a use:171 for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the original of modern jointures.172 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.173 For, being merely a creature of equity, the common law, which looked no farther than to the person actually seized of the land, could award no process against it.
IT is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties, which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the ancient law. These principal outline will be fully sufficient to show the ground of lord Bacon’s complaint,174 that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man, that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use;175 allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits;176 made him liable to actions of waste;177 established his conveyances and leases made without the concurrence of his feoffees;178 and gave the lord the wardship of his heir, with certain other feudal perquisites.179
THESE provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10. which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III; who having, when duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed,180 which ordained that, where he had been so infeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely infeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the statute of Henry VIII, after reciting the various inconveniences before-mentioned and many others, enacts, that “when any person shall be seized of lands, etc., to the use, confidence, or trust, of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seized or possessed of the land, etc., of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seized to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession: thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.
THE statute having thus, not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seized to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seizin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use, as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seizin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.
THE various necessities of mankind induced also the judges very soon to depart from the rigor and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the ancient use shall remain in the original grantor: as, when lands are conveyed to the use of A and B, after a marriage shall be had between them,181 or to the use of A and his heirs till B shall pay him a sum of money, and then to the use of B and his heirs.182 Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations of uses, was also adopted in favor of executory devises.183 But herein these, which are called contingent or springing, uses differ form an executory devise; in that there must be a person seized to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore, if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever:184 whereas by an executory devise the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee;185 because, though that was forbidden by the common law in favor of the lord’s escheat, yet. When the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute executed the legal estate in the same manner as the use before subsisted. It was also held that a use, though executed, may change from one to another by circumstances ex post facto;186 as if A makes a feoffment to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and, upon the birth of a son, the use is executed jointly in them both.187 This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail: here, till he marries the use results back to himself; after marriage, it is executed in the wife for life; and, if the dies without issue, the whole results back to him in fee.188 It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeasance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically mentioned.189 And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.190 And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon observes191) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.
BY this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that “no use could be limited on a use;”192 and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a farther use to another person is repugnant and therefore void.193 And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B, he became seized to the use of C, which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestuy que use. Again; as the statute mentions only such persons as were seized to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the tremor is not seized, but only possessed;194 and therefore, if a term of one thousand years be limited to A, to the use of (or in trust for) B, the statute does not execute this use, but leaves it as at common law.195 And lastly, (by more modern resolutions) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute: for the land must remain in the trustee to enable him to perform the trust.196
OF the two more ancient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts: and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance.197
HOWEVER, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mischiefs which made uses intolerable. They now consider a trust-estate(either when expressly declared or resulting by necessary implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The treason is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice;198 which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to forfeiture, to leases and other encumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents,199 than from any well-grounded principle. It has also been held not liable to escheat to the lord, in consequence of attainder or want of heirs:200 because the trust could never be intended for his benefit. But let us now return to the statute of uses.
THE only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seizin, the only ancient conveyance of corporeal freeholds: the security and notoriety of which public investiture abundantly overpaid the labor of going to the land, or of sending an attorney in one’s stead. But this now has given way to
12. A TWELFTH species of conveyance, called a covenant to stand seized to uses: by which a man, seized of lands, covenants in consideration of blood or marriage that he will stand seized of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefitted, having thus acquired the use, is thereby put at once into corporal possession of the land,201 without ever seeing it, by a king of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage.
13. A THIRTEENTH species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of a real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such bargain a trustee for, or seized to the use of, the bargainee; and then the statute of uses completes the purchase:202 or, as it has been well expressed,203 the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not inure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall or with the custos rotulorum [keeper of the rolls] of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before;204 which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to foresee, and provide against, all the consequence of innovations! This omission has given rise to
14. A FOURTEENTH species of conveyance, viz. by lease and release; first invented by sergeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy) have formerly doubted its validity.205 It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrollment, makes the bargainor stand seized to the use of the bargainee, and vest in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before,206 must be made to a tenant in possession: and accordingly, the next day, a release is granted to him.207 This is held to supply the place of livery of seizin; and so a conveyance by lease and release is said to amount to a feoffment.208
15. TO these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and,
16. DEEDS of revocation of uses; hinted at in a former page,209 and founded in a previous power, reserved at the raising of the uses,210 to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation.211 And this may suffice for a specimen of conveyances founded upon the statute of uses; and will finish our observations upon such deeds as serve to transfer real property.
BEFORE we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or encumber, lands, and discharge them again: of which nature are, obligations or bonds, recognizances, and defeasances upon them both.
1. AN obligation, or bond, is a dead212 whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio [a simple obligation]; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the personal property of the obligor, will be more properly considered hereafter.
IF the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and unconditional: for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se [wrong in itself], the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved: for no prudence or foresight of the obligor could guard against such a contingency.213 On the forfeiture of a bond, or its becoming single, the whole penalty was recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants; and the like. And the statute 4 & 5 Ann. c. 16. has also enacted, in the same spirit of equity, that in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest, and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.
2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized,214 with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this; that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, “that A. B. does acknowledge to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D. etc, is called the cognizee, “is cui cognoscitur” [“he who is acknowledged”]; as he that enters into the recognizance is called the cognizor, “is qui cognoscit” [“he who acknowledges”]. This, being either certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party’s seal: so that it is not in strict property a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record.215 There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6. which have been already explained,216 and shown to be a charge upon real property.
3. A DEFEASANCE, on a bond, recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeasance of an estate before-mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate and frequently a subsequent deed.217 This, like the condition of a bond, when performed, discharges and disencumbers the estate of the obligor.
THESE are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any; though in these there is certainly one palpable defect, the want of sufficient notoriety: so that purchasers or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the ancient feudal method of conveyance (by giving corporal seizin of the lands) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and encumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or ledger-book of some adjacent monastery;218 and the failure of the general register established by king Richard the first, for mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record.219 And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature220 to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it has been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.