of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee.(p) And hereupon we may observe, that when a man has in himself the possession of lands, he must at the coinmon law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already."

8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines it(q) to be a conveyance of an estate or right in esse, whereby a voidable" estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these: "have given, granted, ratified, approved, and confirmed."(r) An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term: here the lease for years is voidable by him in reversion: yet, if he *hath confirmed the [*326 estate of the lessee for years, before the death of tenant for life, it is no longer voidable, but sure.(s) The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release which operates by way of enlargement.

other hand, a release by way of extinguishment may be made to one who has privity but no estate. Thus, a lord may release his seigniorial rights to his tenant after he has been disseised; but a rent-charge, as distinguished from a rent-service, can only be released to the actual tenant, because the charge is only on the land and implies no personal privity. Co. Litt. 268, a.-SWEET.

"Mr. Ritso objects strongly to this explanation of releases; first, because it does not point out the proper distinction between a release per mitter le droit and a release per extinguisher le droit,-viz., that in the former case the release can, but in the latter that it cannot, hold out every other. For example, a release per mitter le droit is where the releasee can hold out every other. The release of the disseisee to the disseisor is of this description; and so it is if A. disseised by B. and C. releases to B.; for B. shall now hold out C. in the same manner as if A. had regularly entered upon B. and C., as he might have lawfully done, and then made a separate feoffinent to B. But if A. is disseised by B., who enfeoffs C. and D., and afterwards A. releases to one of them, this is a release per extinguisher le droit of A. for the benefit of the two feoffees equally; for the one to whoi the release is made cannot hold out the other. Upon the same principle, if the disseisee releases to the lessee of the disseisor, this also is a release per extinguisher le droit of the disseisee, and of which the reversioner as well as the lessee shall have advantage; for they have both of them but one estate in law, and therefore the confirmation of the particular estate is equally the confirmation of the reversion. And so it is if a patron is usurped upon by two and afterwards releases to one of them: it operates, by way of extinguishment, for the benefit of both equally, because the admission and institution are quasi a legal adjudication of the title. Secondly, because the releases which are here described per mitter le droit, and by way of entry and feoffment, are not exactly different species of releases, but only one and the same species, differing no otherwise than in circumstance; for every release which operates by way of entry and feoffment is in fact a release per mitter le droit; and if the disseisee releases, whether to one disseisor alone, or to one of two disseisors, it operates equally in both cases, per mitter and vester le droit of the disseisee, and by way of entry and feoffment; that is to say, the releasee has the same title in both cases as if the disseisee had actually revested his former estate by his entry, and afterwards made a feoffment with livery of seisin to the releasee, and he shall now hold out every other. And, thirdly, because there is another distinct species of release of which no notice whatever is here taken,—namely, a release per extinguisher le estate; as from the grantee of a rent-charge to the owner of the land, or a release of the services from the lord to the tenant, or a release of common of pasture, &c. Co. Litt. 280, a., 307, b. If the lord sells the freehold of the inheritance of the copyhold to another, and afterwards the copyholder releases to the purchasor, this also is a release per extinguisher le estate, and the copyhold interest becomes extinct. 1 Leon. 102, Wakeford's case. Ritso's Introd. p. 39.-SHARSWOOD.

46 The distinction between voidable and void must not be lost sight of here, for it has no operation whatever upon a void estate. Gilb. Ten. 75.--CHITTY.

9 A surrender, sursumredditio," or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater. It is defined(t) a yielding up of an estate for life or years to him that hath the immediato roversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words: "hath surrendered, granted, and yielded up."50 The surrenderor must be in possession;(u) and the surrenderee must have a higher estate, in which the estate surrendered may merge; therefore tenant for life cannot surrender to him in remainder for years.(w) In a surrender there is no occasion for livery of seisin;(x) for there is a privity of estate between the surrenderor and the surrenderee; the one's particular estate and the other's remainder are one and the same estate: and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at wili, though a freehold thereby passes: since the reversion of the lessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any further delivery of possession would be vain and nugatory.(y)51

10. An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one *327] grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.52

49 See, in general, Com. Dig. Surrender. 1 Saund. index, Surrender. When a tenan for life and the remainderman in fee join in making a lease, it should not be pleaded as the lease of both in its inception; for, living the tenant for life, it is only his lease and the confirmation of the remainderman's. 6 Co. 14, b., 15, a. Cases and Opinions, 2 vol. ii. 148, edit. 1791.—CHITTY.

50 But these words are not essential to a surrender. See Wils. 127. Cro. Jac. 169.CHITTY.

51 This is a surrender by deed; but there is also what is termed a surrender in law; as if a person who has a term for years, or an estate for life, accept a new lease incompatible with the interest granted by the former lease, this is a surrender in law, being a virtual surrender of the former term. 5 Co. 11. 2 Prest. Conv. 138.-ARCHBOLD.

And an agreement between the lessor and the assignee of the term, whereby the former agreed to pay an annual sum over and above the rent towards the premium paid by the assignee to the lessee, operates as a surrender of the whole term. 1 T. R. 441. See also 6 East, 86. 12 East, 134. 2 B. & A. 119.-CHITTY.

There may also be an indirect surrender, or surrender in law, as it is called, by the acceptance by the tenant of a new estate inconsistent with his prior estate. Thus, a new lease made to a person in possession under an old lease, and accepted by him, operates as a surrender in law of the old one; for from such acceptance the law implies his intention to yield up the estate which he had before, though he may not by express words of surrender have declared as much. Shep. Touchst. 300. Joe's case, 5 Rep. 116. And where a tenant from year to year underlet the premises to another, and the original landlord, with the assent of the original tenant, accepted the under-iessee as his tenant, a surrender in law was held to have taken place of the first tenant's interest. Thonias vs. Cook, 2 B. & A. 119. Surrenders thus implied by law are not touched by the recent statute 8 & 9 Vict. c. 106, which, we may remember, enacts that any surrender in writing of an interest in lands, not being a copyhold interest and not being an interest which might have been created without writing, shall be void in law unless made by deed.KERR.

52 This is far from being universally true; for there is a variety of distincticns when the assignee is bound by the covenants of the assignor, and when he is not. The genera! rule is that he is bound by all covenants which run with the land, but not by collaterai covenants which do not run with the land. As if a lessee covenants, for himself, executors, and administrators, concerning a thing not in existence, as to build a wall upon the premises, the assignee will not be bound; but the assignee will be bound if the lessee

11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated(z) or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law;(a) and therefore only indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment;) and so also annuities, conditions, warranties, and the like, were always liable to be recalled by defeazances made subsequent to the time of their creation.(b)

II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses.

Uses and trusts are in their original of a nature very similar, or rather exactly

(*) From the French verb defaire, infectum reddere. (a) Co. Litt. 236.

(*) Ibid. 237.

has covenanted for himself and assigns. Where the lessee covenants, for himself, his executors, and administrators, to reside upon the premises, this covenant binds his assignee, for it runs with, or is appurtenant to, the thing demised. 2 Hen. Bl. 133. The assignee in no case is bound by the covenant of the lessee to build a house for the lesson anywhere off the premises, or to pay money to a stranger. 5 Co. 16. The assignee is not bound by a covenant broken before assignment. 3 Burr. 1271. See Com. Dig. Covenant. But if an under-lease is made even for a day less than the whole term, the under-lessee is not liable for rent or covenants to the original lessor, like an assignee of the whole term. Doug. 183, 56. An assignee is liable for rent only whilst he continues in possession under the assignment; and he is held not to be guilty of a fraud if he assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. 1 B. &. P. 21.-CHRISTIAN.

The same principle prevails in equity. See 2 Bridg. Eq. Dig. 138. 1 Vern. 87. 2 Vern. 103. 8 Ves. 95. 1 Sch. & Lefroy, 310. But the assignee's liability commences upon acceptance of the lease, though he never enter. 1 B. & P. 238.-CHITTY.

By 8 & 9 Vict. c. 106, 3, any assignment made after the 1st of October, 1845, of a chattel interest in any hereditament not being copyhold shall be void at law unless made by deed. STEWART.

59 According to this mode of reasoning (says Mr. Ritso) there should be no after-made defeasance allowed of a recognizance, or of a judgment, or of any other executory conveyance of record, which are all equally solemn with a feoffment. Lord Coke expressly tells us that there can be no after-made defeasance of a feoffment, because it is an executed conveyance, in contradistinction to those which are executory. Co. Litt. 204, a. In the case of a feoffment, the estate in the land is finally vested or executed in the feoffee, by the act of livery of seisin, at the instant it is made; and consequently the feoffor can no otherwise have the land again than by a reconveyance de novo. Quod semel factum est, non potest infectum reddi. But otherwise it is in the case of statutes, recognizances, obligations, judgments, and the like; for these are but executory; that is to say, they remain to be completed by a further act still to be done,-viz., the process of execution; and, consequently, till that is had, they may of course be defeated or discharged at any time. And so it is of all other matters which are in their nature executory, such as rents, annuities, conditions, warranties, &c. Co. Litt. 204, a. Ritso, Introd. 50.

The student ought not to infer that such a defeasance, if in pursuance of the intention of the parties when the conveyance is made or otherwise founded upon sufficient consideration, may not be available, and give the grantor a right, on compliance with the terms and conditions agreed upon, to go into a court of equity and compel the grantee to reconvey the estate. Until such reconveyance, however, the estate does not revest at law: the grantor has only what is termed an equitable estate. Indeed, without any written defeasance at all, when an absolute deed is shown to have been originally made to the grantee only as a security for loan of money, or, in other words, was really a mortgage, a court of equity will so consider it, and allow the grantor to redeem and have a reconveyance of the estate, on the ground that the written defeasance has been omitted by fraud, caprice, or mistake. 4 Kent's Com. 142.-SHARSWOOD.

the same answering more to the fidei-commissum than the usus fructus of tho civil law: which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.(c) But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at *328] the will of another. And it was the business of a particular magistrate, the prætor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence.(d) So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request.(e) In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits. (f) As, if a feoffment was made to A. and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A. the terre-tenant had the legal property and possession of the land, but B. the cestuy que use was in conscience and equity to have the profits and disposal of it.

This notion was transplanted into England from the civil law, about the close of the reign of Edward III.,(g) by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to religious houses directly, but to the use of the religious houses:(h) which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, if a testator had enfeoffed another to his own use, and so was *pos*329] yet sessed of the use only, such use was devisable by will. But we have seen (1) how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5, with respect to religious houses.

Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Edw. IV., (before whose time, lord Bacon remarks,(k) there are not six cases to be found relating to the doctrine of uses,) the courts of equity began to reduce them to something of a regular system.

Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI. with respect to the heir;(?) and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.(m) But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And

also it was held, that neither the king nor queen, on account of their dignity royal,(n) nor any corporation *aggregate, on account of its limited

capacity,(0) could be seised to any use but their own; that is, they [*330

might hold the lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was as signed, were liable to perform the use:(p) because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir.

On the other hand, the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession: as annuities, ways, commons, and authorities, quæ ipso usu consumuntur:(q) or whereof the seisin could not be instantly given.(r) 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself,(s) unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions.(t)55 But if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration.(u) 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;(w) for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties,(x) or be devised by last will and testament;(y) for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; *and, as the inten[*331 tion of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee; (2) to whom he was accounted by law to be only tenant at sufferance. (a) 5. Uses were not liable to any of the feodal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c. are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the (") Bro. Abr. tit. Feoffm. al uses, 31. Bacon of Uses, 346,

() 1 And. 37.

(") Moor. 684.
(w) 2 Roll. Abr. 780.

(*) Bacon of Uses, 312.
Ibid. 308.

(*) Stat. 1 Rid. III. c. 1.
(a) Bro. Abr. ibid. 23.

54 In fact, there was not, nor is there, any method of compelling the king to execute the trust; for no court has jurisdiction over him, (see 1 vol. 242;) and, for this reason, although the use has been transferred into possession by the statute of uses, yet the king shall even now hold the estate discharged of the use; because the statute transfers the use into possession only in cases where the trust could have been enforced in equity before the statute. And not only the king, but the alienee of the crown also, hold the estate thus discharged of the use. Ante, vol. 1, p. 242.-ARCH BOLD.

55 In the second section of the 3d chapter of Gilbert on Uses, p. 222, the law is in substance thus laid down. If a feoffment be made, or a fine be levied, or recovery be suffered, without consideration, and no uses be expressed, the use results to the feoffor and his heirs. But if any uses be expressed, it shall be to those uses, though no consideration be had; and herein is the difference between raising uses by fine, feoffment, or other conveyance operating by transmutation of possession and uses raised by covenant; for, upon the first, if no uses were expressed, it is equity that assigns the feoffor to have the resulting use; by the law, the feoffor has parted with all his interest, (see Cave vs. Hol ford, 3 Ves. 667 ;) but where he expresses uses there can be no equity in giving him th . use against his own will. On the other hand, in case of a covenant there can be no use without a consideration; for the covenantee in such case can have no right by law, and there is no reason why equity should give him the use, (and see Calthrop's case, Moor, 101. Stephen's case, 1 Leon, 138. Jenkins's Cent. 6, case 36. Mildmay's case, 1 Rep. 176 2 Roll's Abr. 790.)—CHITTY.