Page 10, line 11 from end, for "Lease," read "Release." 65, line 2, dele" that." 149, note, for Heming's," read" Hemings'." 163, line 3, after "performance," add " and observance." 203, note, lines 5 and 6, after "has," read " to a great extent." A TREATISE ON PURCHASE DEEDS, &c. CHAPTER I. ELEMENTARY SKETCH OF ANCIENT AND MODERN CONVEYANCES. Original Mode of Conveyance in England.-Progress of THE original mode in England of conveying lands in possession, of a freehold quality, was by feoffment; of which the ceremony called livery of seisin, or the actual delivery of possession, formed the essence (a). When the subject of the transfer was a remainder or reversion, and no livery could therefore be made, a grant (b) (which could only be by deed), and an attornment of the particular tenant to the purchaser, were required (c). These were not the only clogs on alienation. The concurrence of the feudal lord, and in some cases that of the heir, was also made necessary to the conveyance (d). Still, however, the science of conveyancing rested on plain and well-known principles; feoffments and grants were the generic assurances; and though not at all times easily perfected, their operation was unobjectionable, and their nature intelligible. (a) Wright, 37. 2 Bl. Comm. 311. (b) Co. Litt. 172. (c) Necessity of attorning was taken away by st. 4 & 5 Ann. c. 16. (d) See Co. Litt. 94. Wright, 168, cited, but without much accuracy of deduction, 2 Comm. 287. B As the kingdom became wealthy and commercial, simplicity proportionably vanished from jurisprudence; and after the statute of uses (a) had turned that which had been a mere right in equity into an actual estate, by incorporating the use with the land, bargains and sales became a frequent substitute for the ancient feoffment. These, however, being of a private nature, the statute of enrolments (b) was passed to give them the publicity which alone can preclude fraud. But the legislature in vain opposed the bent of the times, which demanded facility of alienation. As the statute of enrolments extended only to bargains and sales of a freehold estate, the conveyance by lease and release (the former being a bargain and sale for a year, and consequently of a chattel interest,) presented an effective means of secret and easy transfer; and though a fraudulent evasion of the spirit of the legislature, and formerly suspected by some eminent lawyers (c), was soon generally adopted, and was, until recently, the ordinary conveyance of freehold estates. The lease and release would naturally divide our attention into a separate consideration of its constituent assurances; for though to some purposes they are blended into one conveyance, yet in general, strictly considered, they are distinct; and to form a correct judgment of the precise nature and operation of a lease and release, the student must not begin with regarding it as an integral assurance possessed of specific qualities. What has been adverted to having, however, been amply done by others, I shall confine myself in the ensuing sketch to a lease and release, taken as one substantive conveyance, referring only so far to its constituent parts as to speak of it— FIRST. WITH RELATION TO THE LEASE OR BARGAIN AND SALE FOR A YEAR. SECONDLY. WITH RELATION TO THE RELEASE. FIRST, then. This lease, we must observe, in its mode of operation, in no way resembles a lease at common law. [A release (a) 27 H. 8, c. 10. (b) 27 H. 8, c. 16. (c) See 4 Cruise, Dig. 127, 3rd ed. |