Russell,(y) it was very much doubted, whether a mere deposit of deeds constituted an equitable mortgage, if there was no writing to manifest the purpose, and resting altogether upon parol; it being quite competent to the man, who put the deeds into the hands of a creditor, without reference to the debt, afterwards, from favour to that creditor, to say, that they were deposited with him for the purpose of securing his debt, and that so all the perjury which the statute meant to avoid, is introduced. But Lord Thurlow was of opinion, and that is not now to be disturbed, that the fact of the adverse possession of the deeds in the person claiming the lien, was a fact that entitled the court to give an interest. No case has gone the length, said his Lordship, but he did not see the reason, that, if the deposit is in the hands of a person, who could fairly be called a third person, abstracted from both, why such might not be considered as a deposit for the creditor, provided that could be proved to be the intention. But it was very delicate, when the deposit remained in the hands of the mortgagor himself; and he doubted much whether a mere memorandum, kept in his own possession, and not parted with to the man, in whose favour it was expressed, could take it out of the statute. That it was very nearly the same where the deeds were put into the hands of the wife of the mortgagor, to keep them as be tween her husband and the creditor. That it would not be a safe decision to say, that upon the report, that was a deposit.→→ The utmost extent to which he could go, would be to direct an inquiry, and that must be by an issue. On a subsequent day the Chancellor said, that under the special circumstances of that case, it would be too dangerous to hold, that the wife of the bankrupt was to be considered a depositary of the deeds for the debt of the petitioner, who, therefore, could not support his mortgage. But, with reference to the agreement to replace *the stock, at a particular day, he should be at liberty to prove the amount of his debt.

* [283]

Partitionswhether the

Partitions, which at the common law could be made by jointtenants by deed only, by tenants in common by livery only, without deed, and by coparceners by parol only, without deed or livery,(z) are, by virtue of this statute, become incapable of be- them. ing effected in any case without writing. Joint-tenants and ten

statute extends to

*[284]

ants in common were not compellable among themselves to make partition, until the 31 H. 8, c. 10, and 32 H. 8, c. 32, gave a remedy for enforcing it; but parceners were always at common law subject to a coercive partition by the writ de partitione facienda; which some of the books(a) assign as the reason for the validity of a partition at common law, though made by word of mouth alone. But the reason given by Hawkins, in his Abridgment of Coke Littleton, (b) seems to be more satisfactory, viz. " that partitions between parceners were much favoured and privileged, because their undivided estate was created and cast on them merely by act of law." Partitions, therefore, between parceners, might at law be made by parol; and what more particularly marked this favour of the law towards them, rent, estovers, and such like incorporeal things, might, upon such partition, be reserved or granted, for equality of division, without deed or writing, notwithstanding they lay in grant only, which was a privilege without a parallel in the law. But then such reservation or grant ought to be out of the lands descended, and not out of other lands, and the rent so reserved or granted was distrainable of common right though it was not a rent service.

Joint-tenants, by reason of the particular nature of their estate, which is held by them in perfect unity, each being seized in the language of the law, per mie et per tout, cannot enfeoffe, each other of their respective parts of the land, for each already holds all the land subject to the interest of his *companion, and the conveyance by livery of seisin cannot apply to one who is already in possession; neither can they surrender to each other, even though he be only tenant for life, who attempts to make the surrender, and he who attempts to take the surrender, be tenant in fee simple of his part. Though it is true, that, if there be two joint-tenants, and one of them have the particular estate, and the other the fee simple, as where the estate is limited to two, and the heirs of one of them, and he that has the estate for life, aliens his part to a stranger, the alienee may surrender to the other joint-tenant: or, if there be three joint-tenants for life, and the fee simple is limited to the heirs of one of them, and one of the joint-tenants for life releases to the other, and he to whom this release is made, surrenders to him who has the (b) 256.

(a) 2 Bl. Comm. 324

fee simple, this is a good surrender for a third part.(c) The proper medium of mutual translation of each other's parts is a release, the reason of which easily occurs, by adverting to the nature of their estate.(111a) But, on the other hand, as tenants in common have several and distinct freeholds, they may enfeoffe each other, but cannot release to each other, for a release supposes the party to have the thing in demand ;(ɗ) and the estates hav ing come to them by distinct liveries, must pass to each other by distinct liveries. At common law, therefore, one tenant in common might convey to his companion by parol with livery of seisin, but not so a joint-tenant.

*It seems, therefore, to be an inadvertence, in the author of the Commentaries,(e) when he says, that in the case of jointtenants and tenants in common, the conveyance must have been perfected by livery of seisin; for which he cites the text of Littleton, sect. 250, and Co. Litt. 169. The words of Lord Coke are, "a partition by joint-tenants is not good without deed, but tenants in common may make partition by parol, and if they execute the same in severalty by livery this is good and sufficient in law; and, therefore, when the books say that joint-ten ants may make partition without deed, it must be intended of tenants in common, and executed by livery." At the present day, however, it is very clear, that the statute has made it necessary, both with respect to tenants in common and coparceners, that a partition of their lands must be effected by writing; among joint-tenants a deed is necessary, as it stood at the common law.

*[ 285 3

The method of conveyance by exchange (now seldom adopted Of the con, but formerly frequently in use) at common law might sometimes exchange. veyance by be made by mere word of mouth, without deed or livery.(f) If

(c) Vid. Perk. Sect. 586. 587. (d) Co. Litt. 193, 200, b. (e) Vid. 2 Bl. Comm. 324. (f) For an explanation of this conveyance, see Co. Litt. 51, Vin. Exchange (A. 2.)

(111a) But if one joint-tenant grants, bargains, and sells, or gives, grants, and confirms his estate to his companion, either of these may operate in law as a release, vid. 1 Ven. 78. 1 Sid. 452; and it may be noted, by the way, that if there be three joint-tenants, and one of them doth release to one of the other two, in such like cases there is no need of any limitation of the estate, for the release is good without it. Touchstone, 324.

all or part of the hereditaments, whereof the exchange 'was made, lay in several counties, or if all or part lay in grant, and not in livery, although they were situate in the same county, in these cases it was necessary that the exchange should be in writing, by deed indented. But where the exchange was of lands, and of lands lying in the same county, although it were of any estate of freehold or inheritance, yet it might be by word of mouth, without writing and it might also have been by parol, when the hereditaments exchanged lay in different counties, if the exchange was made only for a term of years. Other distinctions, applicable to this question, are to be found in the books; but as it seems quite clear, that the statute of frauds and *[286] perjuries has rendered every exchange necessary to be in writ

ing, whether of freeholds or terms of years, if the interest exceeds three years, it seems unnecessary to add more upon this subject but the reader may find these distinctions abundantly stated and explained in Perkins's Sections, 244, 247, et. seq. and Coke super Litt. 50, 51, 52. Litt. sect. 62. 1 Roll. 814. 9 Rep. 14; and thus the present Chapter seems properly brought to a conclusion.

287

CHAPTER V.

Sections 5, 6, 19, 20, 21, 22, 23.

5. And be it further enacted, by the authority aforesaid, that all devises and bequests of any lands or tenements, deviseable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void, and of none effect.

6. And moreover, no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall be revocable, otherwise than by some other will or codicil, in writing, or other writing, declaring the same, or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, and by his directions and consent. 2. But all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated, by the testator, or by his direction, in manner aforesaid, or unless the same be altered by some other will or codicil, in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same; any former law or usage to the contrary notwithstanding. 19. And for prevention of fraudulent practices in setting up nuncupative wills, which have been the occasion of much perjury, be it enacted, by the authority aforesaid, that no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved [288] by the oaths of three witnesses (at the least) that were present at the making thereof. 2. Nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was his will, or to that effect. 3. Nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwell