I. RIGHTS TO REAL PROPERTY. But the trouble of the vendor attending on the premises to de- CHAP. IV. liver seisin, and the risk of being unable to prove livery of seisin at a future time, and the circumstance of no expense being saved on the stamp, generally induce conveyancers to prefer a conveyance by lease and release, which contains words, and is capable of operating in various ways in favour of the purchaser. Where, however, a deed of feoffinent has been followed by possession, a jury ought to presume the livery of seisin to have been made. (c) In stating a feoffment, whether in a declaration or a plea, it suffices to allege that A. B. enfeoffed C. D. without alleging livery of seisin. (d) Though feoffments are not so frequently in use as conveyances under the statute, yet they are frequently adopted, where, by their tortious operation, they may have an effect not to be produced by the latter, as, for instance, in barring or destroying contingent remainders, future uses, and powers, in clearing disseisins, &c., and otherwise in curing defective titles. 2. and 3. Gifts and Grants are distinguished only by the term give being, introduced into the deed when the conveyance is gratuitous, and which expresses rather the motive of the party conveying than any particular description of conveyance, for, in other respects, the terms are the same as in any other conveyance, which may equally well operate as and be termed a gift, if it be not for valuable consideration. A grant is either by indenture or deed-poll, by which the grantor conveys some property, (usually incorporeal hereditaments, (f)) such as common of pasture, an advowson, (g) exclusive use of light and air over a man's land, or the use of flowing water, (h) a several fishery in a navigable river, and tithe; interests in which, we have seen, can only be created by instrument under seal, they not being capable of passing by livery of seisin, and lying only in grant. (i) So a deed is essential to create or pass a freehold right, as for term of life, in any easement. (k) A grant under seal also is a proper conveyance to a stranger without livery of a reversion, expectant on the determination of a tenancy for years, or from year to year, and without a lease and release, which are not essential, though generally adopted. (7) (c) See 2 Bac. Ab. Feoffment, 648. (d) 1 Chit. Pl. 253; 2 Saund. 305, note 13; Co. Lit. 303, b. ; Cro. Eliz. 401; Cro. Car. 101. (e) See in general 2 Bla. C. 316, 317; Tho. Co. Lit. Grant; Com. Dig. Grant. (f) 7 Bing. 691; 5 B. & C. 221, 875, Tithes; 9 Bar. & Cres. 478; 8 Bar. & C. 293. (g) Com. Dig. Grant. (i) Id. ibid.; ante, 203, 204. (k) 5 Bar. & Cres. 221; 8 B. & C. 293. (1) Doe v. Cole, 7 Bar. & C. 248, 249; sed quære whether, by consent of the tenant in possession, a feoffment might not be made to a stranger, Id., Watkins on Convey. 161; post, 318, n. (g). 2. and 3. Gifts and grants. (e) CHAP. IV. 4. Leases. (r) All lands and corporeal hereditaments lie in livery or in grant, and they do not lie in livery when the party intending to convey cannot give immediate possession. When, therefore, lands are in possession even of a tenant from year to year, the landlord cannot strictly (excepting by his consent (m)) convey by mere feoffment and livery, for he is only a reversioner, and he may therefore, without lease and release, and by mere deed of grant, convey his reversion, for his estate properly lies in grant. (n) Conveyancers prefer a lease and release in all cases, because those modes of conveyance operate in all ways, and contain words to pass estates in possession as well as in reversion; (n) and another reason for adopting the lease and release is, that there is then no necessity for adducing proof that there was a particular estate or term in existence to make it a remainder. A grant at common law is an innocent not a tortious convey-. ance, and passes only such an estate in the property conveyed as the grantor may lawfully have, and consequently will not cause a forfeiture. (o) A grant is generally used for the purpose of passing incorporeal hereditaments, which may be also, it is observable, conveyed by surrender, lease and release, and bargain and sale, without the word "grant," and hence it is said that any other words which show an intention to pass the property will be equally efficient: but this must be understood with reference to those conveyances which will, if perfect, pass the same, but not as a grant; and, if there be any defect in them, so that they could not have their ordinary operation, if the subject-matter were corporeal hereditaments, then, if the word "grant" be omitted, they will not operate as such upon incorporeal property intended to pass. (p) But although a grant not under seal does not operate to pass an interest in the cases before noticed, yet it will be equivalent to a license, and excuse a trespass done under colour thereof, and before countermand. () 4. Leases. We have already considered the estates or interests for years, and from year to year, usually created by leases or demises; (s) and we have seen that even the latter is deemed to be an estate for years; (t) and that, though the lease be for 1000 years, or perpetually renewable, yet it is, in legal estima (m) Ante, 309; post, 318, n. (g). (p) See 2 Sand. Uses and Trusts, 40. (9) 5 B. & Cres. 221. (r) See in general 2 Bla. C. and notes, 317 to 323; Bac. Abr. tit. Leases. (s) Ante, 254, 255. (t) 1 Campb. 317; 7 B. & Cres. 246. I. RIGHTS tion, not strictly real property, though certainly an interest CHAP. IV. therein, but is personal estate for most purposes, (u) though, as it is connected with land, it gives a right to vote for a county member of parliament. (v) A lease for years of corporeal real property, though usually sealed, need not, even since the statute against frauds, (x) be under seal, though it be for a long term of years, (y) and, indeed, for not exceeding three years, might still be by parol.(z) If the instrument be signed, and contain words of immediate demise, although it has prospective terms of granting a more formal lease at a future period, it will operate immediately as a lease, and must be stamped as such. (a) The stamp is to be upon the sum expressed in the lease, without regard to what may have been really paid, or agreed to be paid. (b) To perfect the interest of a lessee for years of corporeal property, it must be alleged in pleading, and proved in fact, that he entered, or that he elected to take, as if the lease operated as a bargain and sale under the statute of uses ; (c) or he will have only an interesse termini, which, however, will not merge in an estate for life, unless the owner of the latter have possession. (d) When a lease is granted under and in pursuance of a leasing power by a tenant for life, there is not to be upon his death any apportionment of the rent, but the succeeding owner is entitled to the whole of the accruing rent, (e) and he may sue for the same and for other breaches of covenant, as if he were strictly the assignee of the reversion. (f) With respect to what shall be considered an under-lease, and not an assignment, it has been held, that if a party having a term which expired on 11 November 1826, let the premises verbally from 11 September to 11 November in that year, for 270l. payable immediately, this is a sufficient legal parol demise, and not an assignment requiring a writing under the statute against frauds, 29 Car. 2, c. 3, sect. 4; but that being a demise of the whole of the interest, the lessor could not distrain; (g) and where there has been a lease from G., the owner in fee-simple, to A., and then a sub-lease by A. to B. for a shorter term, at an improved rent, A.'s grant to G., the reversion of the sub-lease, and the benefit of the improved (b) 10 B. & C. 673; 3 Dowl.& R. 186. (d) 5 B. & Cres. 111. (e) 1 Swanst. 337; 2 Saund. R. 288, (g) 5 Bing. 24; 2 Moore & P. 57, S.C. TO REAL PROPERTY: CHAP. IV. 1. RIGHTS TO REAL rent, will not merge or prejudice the first lease, so as to preclude G. from suing B. for the improved rent; and if G., by lease and PROPERTY. release, convey the premises and reversion to H. in fee, by way of mortgage, the latter may sue B. in covenant for the improved rent. (h) 5. Exchange.(n) We have seen the necessity for inserting in leases all proper express stipulations, as well on the part of the lessee as of the lessor; (i) and as the destruction of a demised house by fire will not suspend the tenant's liability to pay rent, although the lessor may have received insurance money, unless expressly provided otherwise, leases should contain express covenants in that respect. (j) A lease for years of incorporeal property must always be under seal, or it will operate merely as a license, as of tithe, (k) or of a several fishery in an arm of the sea or navigable river. (7) So a lease to create a freehold interest, as for term of life, must be under seal, or it will be wholly inoperative, as in the instance before mentioned of a demise from year to year, determinable only at will of lessee, who thereby would, in effect, take an estate for his life. (m) An Exchange is a reciprocal grant of equal interests or estates, and qualities, the one in consideration of the other; and the word exchange is essential in such mode of conveyance.(0) But the estates need not be of equal quality, if of equal quantity,(n) nor of equal value, and the stamp act 55 Geo. 3, c. 184, expressly subjects only the money paid for equality of exchange to the ad valorem duty; (p) and an exchange is not a conveyance under that act, so as to subject the value of the estate, but only the money paid for equality to that duty. (q) Upon a conveyance strictly of exchange, it was essential that actual entries should be made on the properties exchanged on both sides, and if either died before such entries, the exchange was void for want of notoriety, (r) for which reason Mr. Butler has observed, that an exchange by lease and release is to be preferred, because in that case the statute executes the possession instantly upon execution of the deeds. (8) (h) 7 Bing. 755. (i) Ante, 118 to 120. (j) Leeds v. Cheetham, 1 Sim. R. 146. (m) Ante, 306, note (m); 8 East, 167. 663; 7 Dowl. & R. 185, S. C.; Com. Dig., Exchange. (0) 3 Wils. 458, 485. (p) Schedule, tit. "Conveyance," "Exchange." (q) Doe v. Preston, 7 B. & Cres. 392. (r) Co. Lit. 50. (s) Co. Lit. 271, b. note (1), Mr. Butler's note. I. RIGHTS TO REAL An exchange can properly be only between two parties, CHAP. IV. though the number of persons is immaterial.(t) In an exchange, properly so called, the word "exchange" only is the operative PROPERTY. and indispensable word, and implies a warranty. Where an exchange is effected by lease and release, there are two operative parts, by the first of which A. in consideration of the conveyance after made in exchange by B. to A., releases &c. to B.; and by the second, B., in consideration of the conveyance before made in exchange by A. to B., releases &c. to A. There is one great difficulty attending exchanges, that each party, in making out his title to the lands which he takes in exchange, is required to show the title not only to the lands or other property taken, but also to that given in exchange. From the great difficulty and expense attending such investigation, it may be a subject worthy the consideration of both parties, whether it would not be better to have a distinct conveyance from each to the other of the properties given and taken in exchange, in consideration of a sum of money expressed in the deed, (about the value of the same,) upon which an ad valorem stamp will be payable, but the expense of which will, it is apprehended, in most cases, be found to be the least; or at all events each property will thereby be afterwards more marketable. Partition is the mode by which coparceners, joint tenants, 6. Partition. and tenants in common divide their interests, so that each may have a separate and distinct interest in certain parts of the property, over which, before, all interests extended. This must, since the statute against frauds, be effected by deed. (v) Each joint tenant being seised of the whole, livery of seisin was never necessary in this case. (w) A partition is now usually effected by the intervention or means of a third party, to whom the property is limited or conveyed in the first instance. When the property is of such a nature as to be capable of being limited to a use, it may be effected by one instrument conveying to a trustee all the property, to the use of each party separately of such portion of it as it is intended he should take in severalty. Where the estate is leasehold, or of such a nature that it cannot be limited to an use, the partition must be effected by several deeds. By the first, the whole estate is transferred to a trustee, upon trust to re-transfer to each his (t) 2 Bla. R. 936; S Wils. 468; Lofft, 401, 404. (u) 2 Bla. C. 323, 324. (v) 20 Car. 2, c. 2; 2 Bla. C. 324. |