CHAPTER III. in the grantee, without entry upon the land, livery of the In what sense the statute transferred uses into possession. possession, or inrolment (k). By means of the former assurance, (the bargain and sale), all the purposes of mortgaging or incumbering the land, (a long term of years, if without impeachment of waste, being of little less value than the fee simple), and by means of the latter, (the lease and release), all the purposes of alienation and settlement might be accomplished, without any other ceremony than the sealing and delivery of the parchment, and without the risk of disclosure. When the lessee was said to be in the actual possession under the bargain and sale for a year, it was meant only that he acquired, by the mere execution of the instrument, such an estate in the land as rendered him capable of accepting a release of the remainder or reversion (). For every vested estate of freehold or inheritance, whether entitling its owner to the present possession of the land or not, might be the subject of a conveyance by lease and release. Suppose that land was conveyed by feoffment to A. for life or for years, (to whom of course the livery of the possession would be made), remainder to B. for years, remainder to C. for life or in fee;-here C. might certainly release to B., who had a vested estate for years, but no possession. Now, the same capacity of enlargement by means of a release belonged to an estate for years, similarly circumstanced, when created by means of a bargain and sale of the use. So that if C., for five shillings consideration, leased, by way of bargain and sale of the use, to D. for years, then D., as having, by force of the statute, a particular estate in the land, derived out of C.'s remainder, (which had thus become, in regard to D., a reversion), was instantly competent to (k) Heyward's case, 2 Co. Rep. 36 a; Fox's case, 8 Co. Rep. 93 b. (1) 2 Prest. Conv. 391. accept a release from C., though it is clear that D. had CHAPTER III. not, nor was entitled to, the actual possession of the land, but would even have been a trespasser if he had taken possession without the permission of A. It is true, that C.'s estate, being a remainder, might pass by a single deed, operating as a grant at the common law, (without attornment (m) or inrolment), and that his lease might so operate; but it is at the same time clear that his lease might give an actual estate by way of bargain and sale of the use, and that, taking effect in either mode, it might lay the foundation for a release. Before the statute, the lease would have taken effect as a grant pro tanto of the remainder, and have rendered the grantee, with out entry, capable of a release, but if the subject of conveyance had been the immediate freehold or fee, then the lessee must have entered; whereas, after the statute, it mattered not whether the freehold or fee was immediate or not, for in either case the lessee was in, without entry, of a particular estate. Even where the bargain and sale was made by the immediate freeholder, the bargainee was not, by force of the statute, invested with the actual possession in fact (n) of the land, nor could he maintain trespass till he had entered (o). By actual possession, therefore, we are to understand such an estate in the land as admitted of enlargement by way of release; and, generally, by the term possession, when that term is employed in treating of uses as they were affected by the statute, nothing more is to be understood than that the statute annexed to the use a commensurate legal interest (m) Ante, 25. 3). But in Perry v. Bowes, 1 (n) Per Bridgman, C. J., Car- Vent. 361, Saunders states the ter, 66. point to be doubtful. And see Green v. Miller, 2 Crompt. & Jerv. 142; and 8 Bing. 92. (0) Lutwich v. Mitton, Cro. Jac. 604; Com. Dig. Trespass (B. น inrolment of bargains and sales for years; CHAPTER III in the land itself, conferring a right or title to the actual possession, either immediate or future, vested or contingent, according to the tenor and intention of the use. Publicity would If the statute of inrolments had extended to instrunot have resulted from the ments creating estates for years, still its policy might, and probably would have been in a great measure disappointed, by first making and inrolling a bargain and sale for a year, and then, by another deed, not inrolled, releasing to the lessee (already in possession under the bargain and sale, aided by the statute of uses) the reversionary interest in the land. As the bargain and sale for a year disclosed nothing beyond the subject-matter of the sale, (which, indeed, it did not necessarily disclose), and the names of the legal grantor and grantee, (neither of whom might have any beneficial interest), the nature and extent of the rights created by the conveyance would still have lain concealed in the unrecorded release. It would seem, therefore, that the mere extension of the statute of inrolments to bargains and sales for years would not, as some writers assume, have had the effect of registering the titles to real property. Nor does experience warrant the supposition, that the legislature, if so disposed, could, even by a series of well-directed attacks, eradicate the long cherished (p) practice of private alienation; much less change, by a single enactment, the habits of a people. Besides, the various common law assurances, feoffments, leases, releases, grants, fines, and recoveries, were left untouched. It seems, indeed, to have been considered that the solemnities which attended those assurances afforded sufficient protection against secrecy and fraud. But solemnities instituted in a semi-barbarous age, to promulgate changes in the relation of lord and (p) Ante, p. 29. vassal, were but ill suited to the protection of purchasers and lenders in the altered condition of society. How inadequate are livery, entry, attornment, and other forms of that nature, to make known even the fact of transfer among a busy commercial people, and how absolutely worthless for the purpose of conveying information relative to the state of the ownership! The disuse of such forms, while it facilitated dealings with land, deducted little from the safety of titles. In modern times, a conveyance by feoffment, in regard at least to the contents of the parchment declaratory of the interests intended to be created, might be made with as much privacy as even a conveyance by lease and release. After attornment was taken away by the statute of Anne (q), persons entitled in remainder or reversion were enabled to convey their interests by a deed of grant unattended by any extrinsic ceremony whatever. And as, in every case where the possession was held by a tenant for life or for years, or even from year to year, the ulterior interest was either a remainder or a reversion capable of being transferred simply by grant, that clandestine species of conveyance might have been adopted in the great majority of transactions. However, the perfect convenience and general applicability of the lease and release, recommended and established it as the common assurance of the kingdom (r). The capacity of testamentary disposition, enjoyed, before the statute, over the equitable interest, and, after the statute, over the legal estate, through the indirect (a) 4 Anne, c. 16, s. 9. It is well known that Mr. Fearne fell into the singular error of supposing, that, in order to convey a freehold remainder or reversion, either VOL. I. G a lease and release, or a bargain and 249. CHAPTER III. A testamentary conferred by the legislature. power over land CHAPTER III. medium of a power, created by the party, of appointing the Whether devises are within the statute. use by will, was gradually extended, by way of direct dominion, to the land itself. This was effected by first rendering lands of a particular tenure devisable, (s) and afterwards reducing (t) all freehold lands (except frankalmoign) to that tenure. The right thus wisely conceded by the legislature was liberally expounded by the judicature. The owner was allowed to effect, by a simple expression of intention, unaided by the artificial machinery of uses, all those irregular destinations, which, as tending to suspend or to displace the legal tenancy, were interdicted by the rules of the common law ;-rules which every owner, however strictly bound to their observance through life, was permitted thus to abrogate in his grave. Whether devises are within the Statute of Uses, (the Statute of Wills, to which allusion has just been made, having been passed subsequently to the Statute of Uses), is a question which has been much discussed, but never expressly determined. The course of adjudication upon wills seems to have assumed rather than decided the affirmative. It would appear, however, that no difficulty can arise in practice from the absence of a solemn decision, for there cannot be a reasonable doubt that where land is devised to A. and his heirs, to the use of B. and his heirs, and both A. and B. survive the testator, B. takes the legal estate, by force either of the statute or of the intention; and according to the better opinion, he takes it by force of the statute (u). Nor can it be considered less clear, that if A. die before the testator, and B. survive the testator, the devise will operate as a direct gift to B., for the efficacy of a devise to the (s) 32 Hen. 8, c. 1; 34 Hen. 8, c. 5. But see 1 Vict. c. 26. Post, Chap. v. (t) 12 Car. 2, c. 24. (u) See Prest. Shep. Touch. 508. The point is the same with respect to devises within the 1 Vict. c. 26. Post, Chap. v. |