enjoyment had openly, without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser; as a matter of right, whether strictly legal by prescription and adverse user, or by deed conferring the right, or though not strictly legal, yet lawful, to the extent of excusing a trespass, as by a consent or agreement, contract or license, in case of a plea for twenty years.

126. In another case the Court of Common Pleas observed that the words of the fifth section, not inconsistent with the simple fact of enjoyment, were referable, as they understood the statute, to the fact of enjoyment, as before stated in the act, viz. an enjoyment claimed and exercised as of right (s).

127. Where leave is asked from time to time within the forty or twenty years to use the easement, that breaks the continuity of the enjoyment as of right, because each asking of leave is an admission that at that time the asker had no right, and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right (t).

128. And in support of a plea of enjoyment for forty years, evidence may be given of enjoyment beyond that period; for if evidence of user beyond forty years were to be excluded, it might be that after the case had been established as far as thirty-eight years back, a discontinuance of proof might occur as to the two or three preceding years, and the party might fail because he was unable to carry his case on without going to the distance of fortyone (u).

*129. The act relieves a party from the necessity of proving the right from time immemorial, and allows as an equivalent the proof of actual enjoyment for thirty years, so that no presumption is admissible (x).

XI. As to moduses and exemptions from tithes.

[The remainder of this Section, having no application to the state of things in this country, is omitted.]

s) 2 Bing. N. C. 709.

4 Adol. & Ell. 383, per Ld. Denman; Monmouthshire Canal Company v. Harford, 1 Cro. Mees. & Rosc. 614; and see 2 Bing. N. C. 709; 4 Mees. & Wels.

501.

[*647]

(u) Lawson v. Langley, 4 Adol. & Ell. 890.

(x) Bailey v. Appleyard, 3 Nev. & Per. 260, per Littledale, J.; 8 Adol. & Ell. 161; see the note, ib. following p. 778.

1. Two important acts affecting the law of real property have just passed. By the first (a), a lease for a year is rendered unnecessary by providing that all corporeal hereditaments, shall, as *regards the conveyance of the immediate freehold, be deemed to lie in grant as well as in livery (b) (1); a feoffment (unless made under a custom by an infant) is required to be evidenced by deed, and certain leases, assignments, and surrenders, to which our attention has already been drawn (c), are required to be made by deed (d)(2).

(a) 8 & 9 Vict. c. 106 ; see 7 & 8 Vict. c. 76, and observe the time of its duration. By s. 1 of 8 & 9 Vict. s. 8, as to contingent remainders becoming executory devises, was wholly repealed; and s. 9 as to conveyances of legal estates in

mortgages; and s. 10 as to receipts of
trustees, were not re-enacted.
(b) Sec. 2.

(c) Supra, ch. 3, s. 1, pl. 5.
(d) Sec. 3.

(1) Generally in the United States, conveyances of real estate derive their efficacy mainly from the statutes of each State, regulating that subject. In Massachusetts, conveyances of real estate are made by deed executed, acknowledged and recorded in manner required by statute, without any other act or ceremony whatsoever. Such is the mode of conveyance in many other States. Other States have adopted different modes of conveyance, and different operations are attributed to them. See 2 Cruise Dig. by Mr. Greenleaf, vol. 4, Tit. 32, Deed, ch. 4, §1, note; 4 Kent (6th ed.) Lecture, 67.

(2) Nothing, says Mr. Chancellor Kent, can be more concise, and more perfect in its parts, than the ancient charter of feoffment. It resembles the short and plain forms now commonly used in the New England States. 4 Kent (6th ed.) 480. In the United States the delivery of the deed, duly executed, will generally pass the seisin, where there is no adverse possession, and in some of the States even where there is an adverse possession. 2 Cruise Dig. by Mr. Greenleaf, vol. 4, Tit. 32, Deed, Ch. 4, §1, in note, §9 in note. The conveyance by feoffment, with livery of seisin, has long since become obsolete in England; and though it has been, in the United States, a lawful mode of conveyance, it has not been used in practice. Our conveyances have been either under the statute of uses, or short deeds of conveyance, in the nature of the ancient feoffment, and made effectual on being duly recorded, without the ceremony of livery. 4 Kent (6th ed.) 489.

A feoffment is no longer to have a tortious operation; an exchange, or a partition is not to imply any condition in law; the word give or grant is not to imply any covenant in law (1), except so far as by force of any act of parliament, it may imply a covenant (e). Under an indenture, an immediate estate and the benefit of a condition or covenant may be taken, although the taker be not named a party, and a deed purporting to be an indenture need not to be indented (ƒ) (2). These several provisions refer to deeds executed after the 1st of October 1845. Contingent interests, possibilities coupled with an interest, and rights of entry, as we have seen, may be conveyed by deed, and a married woman may disclaim by deed (g), which provisions are to operate after the 1st of October 1845. And a contingent remainder existing at any time after the 31st of December 1844, is to be, and if created before the passing of the act, is to be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner as if such determination had not happened (h); and finally, when the reversion on a lease shall after the 1st of October 1845, be surrendered, or merge, the next estate is to be deemed the reversion expectant on the same lease, to the extent and for the purpose of preserving such incidents to, and obligations on the same reversion as but for the surrender or merger would have subsisted (i).

2. The other act (k), provides that every satisfied term of years, which, either by express declaration or by construction at law, shall upon the 31st of December 1845, be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and determine, but with an exception, that every such term which shall be so attendant by express declaration, although made. to cease, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded to him if it had continued to *subsist, but had not been assigned or dealt with after the said

(e) Sec. 4.

(f) Sec. 5.

(g) Sec. 6, 7.

(h) Sec. 8.

(i) Sec. 9; compare the provisions with those of the 7 & 8 Vict. c. 76, and keep in view the period during which the latter will operate.

(k) 8 & 9 Vict. c. 112.

(1) See Vanderkarr v. Vanderkarr, 11 John. 122; Kent v. Welch, 7 John. 258. In Maine the word "give" does not import a covenant of warranty. Allen v. Sayward, 5 Greenl. 227.

(2) See 2 Cruise Dig. by Mr. Greenleaf, vol. 4, Tit. 32, Deed, ch. 1, §19, note, ch. 21, §1, in note; 4 Kent (6th ed.) 461.

31st of December 1845, and shall for the purpose of such protection be considered in every court of law and equity to be a subsisting term (1). And it is further provided, that every term of years then subsisting, or thereafter to be created, becoming satisfied after the 31st December 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance, shall immediately upon the same becoming so attendant absolutely cease and determine (m).

3. The object of this act appears to be to merge all attendant terms, but to preserve to the persons entitled the protection which a term would have afforded to them, where upon the 31st December 1845, it was attendant by express declaration. But even this is a limited protection, for it gives not such protection as a further assignment of it, for a purchaser, would confer, but such protection as it would have afforded if it had continued to subsist, but had not been assigned or dealt with after the 31st December 1845.

(1) Sec. 1.

(m) Sec. 2; and see 8 & 9 Vict. c. 119, for the purpose of shortening convey

ances and covenants; and 8 & 9 Vict. c. 124, for the like object as to leases.

*CHAPTER XII.

OF SEARCHING FOR INCUMBRANCES AND OF RELIEF AGAINST

INCUMBRANCES.

SECTION I.

OF SEARCHING FOR INCUMBRANCES.

2. Judgments must be stated in abstracts. | 25. Purchasers without notice protected. 3. JUDGMENTS UNDER THE OLD 26. Operation of act.

12. Purchaser without notice protected by 36. Judgments not defeated by an apoint

22. JUDGMENTS UNDER THE NEW 47. Judgments against bankrupts.

equitable, and copyholds and gen-49.
eral powers.

24, 28. An actual charge, and bind issue
and others who could be barred.