scribed is of a compound description, consisting of two separate parts; first, a bargain and sale; secondly, a common law conveyance of release: and, (like the bargain and sale,) it is adapted to the case where a person seised of land in possession, vested remainder, or reversion, proposes to convey his interest to another. A conveyance of the same denomination was among those which obtained occasionally at the common law (p), and was omitted in our former enumeration of them only because it has long fallen into complete disuse. Its principle (which is material to our present purpose) was as follows:-A party desiring to convey in fee, would first make to the proposed alienee, a demise or lease; for example, for one year, which, if perfected by his actual entry, would confer upon him a complete estate of leasehold (q). He would then be capable of receiving a release of the reversion, for he would be tenant of the particular estate on which that reversion was expectant (r); and the next step therefore would be to execute a release of the land to him and his heirs: so that, by the conjoint operation of the two conveyances, he would become, without livery of seisin, tenant in fee in possession. When the Statute of Inrolments had rendered it impossible to effect a secret and summary conveyance of the freehold, by the method of bargain and sale (s), the practitioners of the day were left to explore new means of attaining that favourite object; and they accordingly invented for the purpose, a new conveyance under the Statute of Uses; the hint of which was supplied by this common law expedient of lease and release (t). Instead of a lease or demise, the conveying party was made to execute a bargain and sale for some leasehold interest, for example, for the term of one year. This, with (p) 2 Sand. Us. 70, where it is said not to have been frequent. See Reeves's Hist. Eng. Law, vol. iii. p. 357; vol. iv. p. 356. (q) 2 Bl. Com. 144. VOL. I. (r) Vide sup. p. 328. (t) 2 Sand. Us. 71; 2 Prest. Conv. 219. N N out any inrolment, passed the legal estate for a year to the bargainee, (the Statute of Inrolments extending to freeholds only,) and the estate so transferred was complete (as we have seen) without actual entry (u). The transferee therefore was capable of receiving a release of the freehold and reversion (x); which release was accordingly granted to him on the next day (y). This compound conveyance -which is said to have been invented by Serjeant Moore soon after the Statute of Uses (~)-was called, like its common law prototype, a lease and release; though, properly speaking, it is rather a bargain and sale with release. As it was competent to pass the freehold without livery of seisin, entry, or inrolment, or any other ceremony than the execution of the deeds themselves (a), and was in some other technical points more advantageous than a bargain and sale (b), it soon grew into familiar use; and became so generally established as almost entirely to supersede every other method of conferring a freehold estate, whether at common law, or under the Statute of Uses. It is almost superfluous to add, that its legal validity became also, in progress of time, too firmly settled to be shaken, though great lawyers have formerly entertained doubts on that subject (c). On the release, some use was ordinarily engrafted. If it was one to the relessee himself in fee, he took the legal estate as at common law (d); for this is not such a use as the statute executes (e); but if the use were declared to a third person, it would be executed by the statute, and the legal estate in the freehold conveyed would pass accordingly to him. The lease (or bargain and sale) and the release, in prac (u) Vide sup. p. 543. See 2 Sand. Us. 71. (x) 2 Sand. Us. 71; 2 Prest. Conv. 219. (y) Ibid. (z) 2 Bl. Com. 338; Reeves's Hist. Eng. Law, vol. iv. p. 355. (c) 2 Bl. Com. 339. (d) 2 Sand. Us. 72. (e) Vide sup. p. 372. tice, used always to constitute separate deeds, the former bearing date the day before the latter; but if comprised in the same deed, they were understood to be equally effectual (f). And by 4 & 5 Vict. c. 21, intituled " An Act "for rendering a release as effectual for the conveyance "of freehold estates as a lease and release by the same parties," every instrument purporting to be a release of a freehold estate (g), and expressed to be made in pursuance of that Act, shall be as effectual for all purposes as if a bargain and sale (or lease) for a year had been executed, although such bargain and sale (or lease) shall not in fact have been executed. 66 V. A Grant to Uses. Though we have not thought ourselves at liberty to dispense with the former learning relative to the lease and release, so lately the principal conveyance in our law, and to the other methods before enumerated in this chapter, these now rarely find a place in practice; for by the obvious effect of that most important provision of the 8 & 9 Vict. c. 106, s. 2, to which we formerly had occasion to refer,-abolishing the antient maxim that corporeal hereditaments lie in livery only and not in grant, by enacting that they "shall, as regards the conveyance of the immediate freehold thereof, be deemed "to lie in grant as well as in livery,"-all conveyances of hereditaments, (whether corporeal or incorporeal, or in possession or expectancy, and whether for an estate of freehold or for an inferior estate,) may now be brought within the range of that common law conveyance discussed in the last chapter under the head of grant; though, in its antient and proper application, that conveyance was confined (as we have seen) to the transfer of incorporeal here 66 (f) Sugd. Gilb. 229, (n.) (g) For the purposes of this statute, the word freehold is defined to extend to all lands and hereditaments, for the conveyance of which a bargain and sale (or lease) for a year, as well as a release, would have been used if the Act had not been passed. (4 & 5 Vict. c. 21, s. 3.) ditaments and estates in expectancy: and this being the case, a grant has, in fact, supplanted, generally speaking, all these methods, and become the almost universal expedient for conveying real estate inter vivos. It is to be observed, however, that it is the practice of conveyancers to import into a grant of corporeal hereditaments, limitations to uses, and that a conveyance so framed, takes effect under the Statute of Uses; for while the seisin to the use is created by force of the statute 8 & 9 Vict. c. 106, the use is converted into legal estate by force of 27 Hen. VIII. c. 10(h). Having thus considered each of the different conveyances under the Statute of Uses, it is now time to make some remarks applicable to those conveyances as a class. We may remark then, in the first place, that conveyances to uses must of course comprise all the circumstances necessary to bring the Statute of Uses into operation. Some use therefore (either in esse or otherwise) must be raised by them, and some sufficient seisin to such use must be constituted (i); or in the language of conveyancers there must be a seisin proper to support or serve the use (k). And from this necessity of a seisin to a use it follows, that an existing term of years cannot be transferred by any method of conveyance depending on the Statute of Uses for its operation; for of a mere chattel interest there can be no seisin: though the owner of the freehold may (as we have seen) convey it by these methods, for a term of years; for he has a seisin out of which the use for the term may be served (1). For the same reason it has also been supposed that a corporation aggregate cannot aliene land by a conveyance under the Statute of (h) It may be as well to remark, that there may also be a grant of land containing no use; as if A. grant a close directly to B. and his heirs. In such a case the conveyance takes effect, not under the Statute of Uses, but as a common law grant extended in its operative power by force of 8 & 9 Vict. c. 106, as already explained, sup. p. 520. (i) Vide sup. p. 371. (k) 2 Sand. Us. 59; 1 Sand. Us. 97, 133, 140. (1) 2 Sand. Us. 59. Uses (m); for, as formerly remarked, it was part of the antient doctrine with respect to uses, that such bodies as these could not be seised to any use but their own (n). When corporations aggregate, therefore, have occasion to make conveyances of their lands, the method adopted has commonly been that of a feoffment; or a lease with actual entry, followed by a release (o). With respect, however, to the use which is required for the purpose of a conveyance under the statute, this may either be expressly declared, or implied by law. Thus, if A. conveys by feoffment or lease and release to B. in fee, without consideration, and without declaring any use, there will be a resulting use, by construction of law, to himself the grantor; which use the statute will execute accordingly (p). With respect to the limitation of estates by these methods of conveyance, it may be laid down as a general proposition, that a limitation of the legal estate by way of use, is governed by the same principles as apply to the creation of estates by a common law assurance (q). Thus we have seen that the word heirs is necessary at common law, to create an estate of inheritance (r); and in like manner, if a man bargains and sells to A., without adding and his heirs, A. has only an estate for life (s). So an estate may be limited by way of use (as well as in a common law conveyance) in possession, in remainder, or in reversion (t); and, if in remainder, must be limited to take effect in possession immediately on the determination of (m) 2 Sand. Us. 58; 4 Cru. Dig. 175; Sugd. Gilb. 7, (n.) (n) Vide sup. p. 366. (o) 2 Sand. Us. 59; Sugd. Gilb. 7, n. (1). (p) Co. Litt. 271 b; 1 Sand. Us. 106, 109; Doe v. Rolfe, 3 Nev. & Per. 648. Vide sup. p. 378. (q) 1 Sand. Us. 123, 124; Corbet's case, 1 Rep. 87 b. A more liberal construction, however, is in some (s) 1 Sand. Us. 124. |